¶1I dissent. In my opinion Count II states a cause of action in fraud and deceit.
¶2Count II effectually alleges that defendant, with knowledge that plaintiff would thereby lose valuable rights in the nature of pensions, represented (promised) to her that he would live with and support her, a representation which he *383made without any intent to perform but which she believed, relied and acted upon to her damage.
¶3There is no question that this, at common law, would state a cause of action in deceit, and that the common law is applicable in California unless changed by statute. When, therefore, we turn to Civil Code section 43.4 to determine whether it destroys this cause of action we must do so obedient to the rule that statutes in derogation of the common law shall be strictly construed. The section includes provision that “A fraudulent promise to . . . cohabit after marriage does not give rise to a cause of action for damages.” (Italics added.)
¶4As the opinion of Justice Friedman points out, this section was written into the anti-heart-balm law after Langley v. Schumacker (June 1956) 46 Cal.2d 601 [297 P.2d 977], and no doubt with that opinion in mind. The facts in Langleywere that plaintiff gave up her job upon defendant’s fraudulent representation that he would marry her; and “consummate the marriage” by having “marital intercourse” and by cohabiting with plaintiff. The court in Langleyheld that Civil Code section 43.5 outlawing causes of action for breach of promise of marriage did not apply to an action for fraud.
¶5When the Legislature in 1959 stated in response to the Langleydecision that a fraudulent promise to cohabit after marriage was not actionable, there is no gainsaying that a plaintiff who bases her (or his) complaint wholly upon a fraudulent representation of “cohabitation” as the word was applied in Langleyand as it was intended to be applied by the Legislature when it “overruled” Langley, states no cause of action.
¶6But, where I part company with the majority opinion is its tenet that the cause of action stated here is based upon nothing other than a fraudulent promise of cohabitation. The opinion states that the “complaint indulges in the dancing footwork of artful pleading, meticulously avoiding the word ‘cohabit’ and resorting to a series of equivalent terms.”
¶7I cannot agree that the terms of this complaint are ‘ ‘ equivalent.” The fraudulent acts alleged here undoubtedly embrace cohabitation but they go beyond that.
¶8Defendant, it is alleged, not only promised the plaintiff he would live with her as a husband and wife live together, which is the common meaning of “cohabit,” he also promised that when she surrendered valuable property—her pension rights—she would receive in lieu thereof his labor to *384support her for the rest of her life. That was the bargain struck and, in my opinion, it was no mere bargain of cohabitation as the Legislature intended to apply the word in section 43.4.
¶9The majority opinion argues that because support by the male is the usual concomitant of marriage it is also a necessary component part of the defined term “cohabitation.” I do not agree. In marriage where both the husband and wife work or, where the husband does not work, can it be said that because of this they do not cohabit ?
¶10Nor, remembering the objectives in mind in the adoption of anti-heart-balm legislation, is there any conceivable reason in my opinion why the Legislature should have intended to legislate against fraudulent promises for support. Why should it so discriminate against a plaintiff, and in favor of a defendant, merely because the fraudulent representations included the added bait of unfulfilled connubial enjoyment? The ruling of the majority means that no matter how treacherous the fraud, no matter how grievous the monetary loss, there can be no recovery so long as the promisor has been astute enough to couple his promise of support with a promise to cohabit in marriage. The plaintiff who gives up a pension to become the unwed companion of the deceitful defendant can be made whole, but the plaintiff who succumbs to wiles which include marriage cannot recover—not even if plaintiff gives up pension rights equal to a fortune. The spouses may contract between themselves regarding their property and right of support. When they do so they are, because of the closeness of the relation, held to the strictest rectitude. The slightest fraud by one spouse will give the other right of redress—in all matters, that is, save when the contract includes, however casually and incidentally, the intimacy of cohabitation; or so say my colleagues here.
¶11In my opinion the all-embracive interpretation given by the majority to the word “cohabit” as used in Civil Code section 43.4 is strained and impermissible. Our job is to interpret the intent of a Legislature composed of ordinary individuals, not of semanticists. We reach the kernel of their meaning when we crack the nut, not split the atom. When the Legislature barred recovery for a fraudulent promise to cohabit after marriage its meaning, as I read it, was to deprive the bride of a right to recovery when, as regards connubial bliss, realization did not measure up to anticipation, even where expectation had been whetted by artful blandishments. *385It did not mean to leave her without redress when her life income had been bargained away for unrealized life support fraudulently contrived. That was the cause of action pleaded.
¶12A petition for a rehearing was denied July 30,1964. Pierce, P. J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied September 2, 1964. Peters, J., was of the opinion that the petition should be granted.