Gillett v. Gillett

• Decision Date: 18 February 1959
• Citation: 335 P.2d 736,168 Cal.App.2d 102
• Court: California Court of Appeals Court of Appeals
• Parties: Sharon Elizabeth GILLETT, a minor, by her Guardian ad litem, Adrian K. Gillett, Plaintiff and Respondent, v. Josephine I. GILLETT, Defendant and Appellant. Civ. 23250.

Page 736

335 P.2d 736

168 Cal.App.2d 102

Sharon Elizabeth GILLETT, a minor, by her Guardian ad litem, Adrian K. Gillett, Plaintiff and Respondent, v. Josephine I. GILLETT, Defendant and Appellant.

Civ. 23250.

District Court of Appeal, Second District, Division 2, California.

Feb. 18, 1959.

Order Modifying Judgment Feb. 25, 1959.

Hearing Denied April 22, 1959.

Robert H. Sanders; Warner, Peracca & Cowan, Los Angeles, for appellant.

George H. Pratt, Los Angeles, for respondent.

ASHBURN, Justice.

Appeal from judgment for $50,000 awarded for injuries received by 8-year-old plaintiff through excessive punishment by her stepmother, the defendant.

Defendant stood in loco parentis and was entitled to the same immunity which would attend a natural parent, but no greater (Trudell v. Leatherby, 212 Cal. 678, 682, 300 P. 7). It is now established as California law that, while a parent is not liable to his child for the results of negligence, he has no immunity with respect to willful torts; that he may administer reasonable punishment with impunity, but when he exceeds that limit and does so willfully he commits a battery and is civilly liable for the consequences; the questions of excessiveness and willfulness are issues of fact for trial judge or jury to solve.

Emery v. Emery, 45 Cal.2d 421, at page 427, 289 P.2d 218 at page 222, upholds the right of a child to recover from her father for willful misconduct resulting in an accident and injuries to her. After pointing out that '[t]he parent's immunity, if any, from tort liability is based on the minor child's disability to sue rather than on the absence of a violated duty', the court said 45 Cal.2d at page 429, 289 P.2d at page 223: 'The rationale of the cases refusing to extend immunity to the parent for wilful or malicious torts against his minor children is that the lack of such immunity does not conflict with or inhibit reasonable parental discipline. [Citations.] Preservation of the parent's right to discipline his minor children has been the basic policy behind the rule of parental immunity from tort liability. [Citation.] Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right wilfully to inflict personal injuries beyond the limits of reasonable parental discipline. No sound public policy would be subserved by extending it beyond those limits. While it may seem repugnant to allow a minor to sue his parent, we think it more repugnant to leave a minor child without redress for the damage he has suffered by reason of his parent's wilful or malicious misconduct. A child, like every other individual, has a right to freedom from such injury. Accordingly, we conclude that an unemancipated minor may sue his parent for a wilful or malicious tort, and thus that Buel is not immune from suit for the causes of action pleaded by Barbara and Joyce in the complaint in the present action.' Perkins v. Robertson, 140 Cal.App.2d 536, 295 P.2d 972, relying upon the Emery case, holds that such an action will lie for willful misconduct of a stepfather. This was also an automobile accident case; but that is not a limiting circumstance. The rule applies to any type of willful wrong to the child. Indeed the infliction upon a child of 'cruel or inhuman * * * punishment or injury resulting in a traumatic condition' is a felony. Pen.Code, § 273d. And such excessive punishment, when found to be a willful wrong, amounts to a battery (Wright v. Wright, 85 Ga.App. 721, 70 S.E.2d 152, 154). The complaint charges and the court found in terms of assault and battery; it was also found that defendant was not actuated by express malice. But the terms assault and battery when used with respect to this case imply willfulness.

Plaintiff Sharon and her older sister Inette were doing the supper dishes; plaintiff was drying; she dropped a dish and it broke; defendant came in from the yard and, according to Inette, got very upset, started yelling and screaming and swearing at Sharon, hit her in the back with her doubled fists; Sharon ran into the bedroom and defendant followed, hitting her on the way and in the bedroom; at that place Sharon was between two beds with her face to the wall, crying and screaming, and defendant kept hitting her in the back with her doubled fists, sideways. This was in the early evening of June 15, 1953. The father returned from a fishing trip about midnight. At that time Sharon was moaning and groaning, pale and very upset. He did not sleep any that night. However he did not learn of the beating until three or four days later when Sharon's own mother told him about it. At his suggestion defendant took plaintiff to the family doctor the next day after the assault, the 16th.

The doctor was plaintiff's great-uncle, Dr. Claude S. Gillett. Defendant told him the child had been vomiting from 1:00 a. m. to 6:45 a. m. and that her father had punished her a few days before. The doctor saw no external evidence of trauma. With a history of vomiting and pain in the abdomen, radiating to the back, he sent the child home and told defendant to watch her.

That evening he was called to the house and found plaintiff pale and ill, in mild shock, with evidence of internal bleeding. She was taken to the hospital and Dr. Robbins, a surgeon, was called in. The two doctors made a pre-operative diagnosis of blood in the abdomen, the most common cause in children being a reptured spleen; they thought that was probable in this case. An exploratory operation was performed and it was found that the splenic and renal (kidney) veins were ruptured and bleeding into the abdominal cavity. In Dr. Gillett's opinion (he was called by the defendant) the ruptures were caused by some injury from outside the body, certainly not from internal injury or disease; the veins could not be repaired, because of bruising and tearing; plaintiff's life was in jeopardy; the supply of return blood had been ruined, and it was necessary to remove the spleen and kidney to prevent her bleeding to death.

Dr. Chas. R. Parrish, who testified from the hospital record which had been received in evidence by stipulation, interpreted the doctors' entries for the court and said they showed rupture of spleen and kidney (rather than the veins leading to same); this seems to have grown out of use of the word 'view' in the post-operative diagnosis; Dr. Gillett says the word should have been 'vein.' Dr. Parrish also said a substantial blow would be necessary to cause such ruptures; that a fist could do it and not necessarily leave external evidence of trauma; more than half of such ruptures show no external bruising. The kidneys and spleen are below the rib cage and are protected by muscular tissue. Plaintiff was in the hospital about two weeks and made good recovery.

Both doctors testified that little is known about the functions of the spleen or the effect of its removal. They also agreed that the removal of a kidney from a female child impairs her capacity for successful pregnancy due to the overload of work upon the one remaining kidney.

That the limit of reasonable punishment was passed in this instance and that defendant's violence was willful admits of little debate; certainly the trial judge was warranted in so concluding. Proximate cause is clear also. Defendant denied the whole punishment incident and said the father had beaten plaintiff with a belt and buckle about a week before, but the court...