Harrison v. Harker

• Decision Date: 27 March 1914
• Docket Number: 2543
• Citation: 44 Utah 541,142 P. 716
• Court: Utah Supreme Court
• Parties: HARRISON v. HARKER et ux

142 P. 716

44 Utah 541

HARRISON v. HARKER et ux

No. 2543

Supreme Court of Utah

March 27, 1914

On Application for Rehearing July 13, 1914.

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Habeas corpus by J. B. Harrison against David Harker and wife to determine the custody of an infant child.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

Stokes and Bagley for appellants.

King &amp King for respondent.

FRICK J., STRAUP, J. STRAUP, J., concurring. McCARTY, C.J dissenting.

OPINION

FRICK, J.

On the 12th day of July, 1912, the plaintiff, respondent here, as the father, and at the request of his wife, the mother of the infant child in question, filed his application in the district court of Salt Lake County, in which he prayed that a writ of habeas corpus issue against the defendants, who are appellants in this court, to require them to produce said infant child in court, and that the custody thereof be awarded to him.

We remark at the outset that this is another of those unfortunate cases which involves the future welfare of an infant child, which, in this case, was of the tender age of less than one year when this proceeding was commenced, and of the age of only a few hours when it passed into the custody of appellants. Where only property rights are in issue, or even where the life or liberty of adults is involved, however trying or complicated the case may be, we nevertheless, as a general rule, have no great difficulty in finding some satisfactory solution of the problems that may be presented; but where, as is the case here, the future welfare of an innocent and helpless infant and the affections of a young, inexperienced, and perhaps, at the time of the occurrences, thoughtless mother are concerned, and where the consequences of our decision might prevent an innocent child from knowing its own parents, although they are both alive and more than willing to assume the responsibility of parentage, the case is quite different. Under such circumstances we cannot remain insensible to the importance of the task nor of the magnitude of the responsibility that is imposed upon us. It doubtless is largely due to these considerations, coupled with the fact that all of us are conscious that in such cases our judgment may be more or less influenced by our feelings, that the judges of the courts of last resort so often are found to entertain divergent views with regard to what the result in a particular case should be. While the adjudicated cases disclose that there is but little difference among the judges with respect to the law, yet they greatly differ with respect to what the result should be in view of the facts and circumstances of a particular case. While the case at bar also has its own peculiar circumstances, nevertheless, in view of the whole record, the writer at least finds no great difficulty in arriving at what to him seems a just conclusion.

Passing, now, to the merits, we remark that upon a hearing the district court awarded the custody of the child in question to the respondent and his wife, father and mother of the child. It is for the purpose of reversing that judgment that this appeal is prosecuted. The facts are not very numerous nor greatly involved, and with few unimportant exceptions are not in conflict. The circumstances under which the child in question passed into the custody of appellants are substantially as follows:

Prior to July, 1911, the respondent, J. B. Harrison, and Ella, his wife, were lovers and engaged to be married, and in the month aforesaid she was about to become a mother. They both discussed her condition, and, as I read the record, he wanted to get married before the child was born, but she, as the evidence shows, objected for the reason, as she says, that she wanted to conceal her predicament from her father, which, she said, could not have been done if they were married, and the child were born so soon after marriage. To accomplish her purpose of concealing her maternity, both she and respondent went to see a Mrs. Phillips, who was conducting what she calls a maternity home known as the Willowsmere Hospital, located on the outskirts of Salt Lake City. They went to the hospital to make arrangements with Mrs. Phillips on the 15th of July, 1911, and the child was born on the 17th of that month. Mrs. Harrison says that the child was born sooner than she expected, and for that reason she was wholly unprepared for the event; the fact being that she had no clothes whatever prepared for the little stranger, who proved to be a little girl. Before the child was born she made arrangements with Mrs. Phillips to have some one take the child as soon as it was born. Mrs. Phillips, it seems, always was in communication with some persons who desired to adopt infants, and among that number were appellants. Mrs. Phillips, however, tried to persuade the young mother from her purpose of giving away the child, telling her that she would surely regret it; but the young mother was determined at the time, and she freely concedes the fact, to conceal her motherhood from her folks, and especially from her father, who knew nothing about her condition, and to accomplish that purpose to let some one take the child as soon as it was born. Immediately after the child was born Mrs. Phillips informed the appellants that she had a child they could have; but after it was born, and before the appellants reached the hospital, she again spoke to Mrs. Harrison, telling her not to give up her child, but the latter seemed determined to carry out the plan she had mapped out for herself. The appellants lived on a farm and were conducting a small dairy business some twelve or more miles from Salt Lake City, and as soon as they were advised by Mrs. Phillips as aforesaid they went to the hospital to receive the child. Mrs. Phillips, in the meantime, had improvised some clothing for the infant. Appellants arrived at the hospital shortly after noon of the day the child was born, and about three o'clock of that day left for their home with the child. Neither of the appellants saw Mrs. Harrison at the hospital; but it seems that Mrs. Harrison heard their name spoken while they were there, and also learned where they lived. Mrs. Harrison's health seemed more or less affected and she remained at the hospital with Mrs. Phillips three, instead of two, weeks as originally intended. After three weeks had elapsed Mrs. Harrison left the hospital and went to her aunt's, a Mrs. Silcocks, and it seems informed her of what she had done. It seems that the aunt did not approve of what had been done, and she and Mrs. Harrison, within three days after the latter had left the hospital, went to the home of appellants and then and there asked that the custody of the child be surrendered to Mrs. Harrison. The only difference between the testimony of Mrs. Harrison and her aunt on the one side and the appellants on the other is that Mrs. Harrison and the aunt claim that they demanded the child for Mrs. Harrison, while the appellants contend that it was demanded for the aunt. It is, however, quite immaterial which version is taken as the correct one, since, so far as appellants are concerned, Mrs. Harrison had the legal right to demand the child as will be seen hereafter, whether for herself or for her aunt. Appellants very emphatically refused to give up the child, and it seems that in the interview Mr. Harker, one of the appellants, was not at all considerate of Mrs. Harrison's feelings. He, it seems, was quite free in his accusations, although he had never seen Mrs. Harrison before nor knew aught about her, except the fact that she claimed to be the mother of a child born out of lawful wedlock. He seemed to make the most of that fact. Upon that subject Mrs. Harrison testified that she and her aunt were at the house of appellants at the time for the purpose of obtaining custody of the child for about two hours; that at that time he said many harsh things. She says:

"He said I wasn't a fit mother for the child. . . . I don't remember all he said. I know he had me crying all the time. He was talking to me cross and crabbed all the time, insulting me. He had me crying all the time. I didn't talk much to him."

While Mr. Harker does not state in so many words that he was harsh to Mrs. Harrison, yet he admits that he said to her "Why didn't you do the right thing and go and be married before the child was born?" and added, "she said nothing; she just sat with her head hanging this way." After appellants had refused to give up the child, Mrs. Harrison discussed the matter with the respondent, and they concluded to get married forthwith which they did on the 17th day of August, 1911, or just one month after the child was born, and only a few days after Mrs. Harrison demanded it from appellants as before stated. Soon after the demand had been made appellants went with the child to see Mrs. Phillips. They informed her of the demand and then insisted that they understood that the child had been given to them permanently. Mrs. Phillips assured them that such was the case, and in substance told them that the mother of the child had authorized her to give it to appellants, and that they had a right to keep it. It seems that the respondent happened to call at the hospital just at the time appellants were there. He went there he says, to pay Mrs. Phillips the remainder that was due her for taking care of Mrs. Harrison, and in view that the right to the custody of the child was under discussion, Mrs. Phillips introduced respondent to appellants as the father of the child. Appellants and respondent do not agree as to what took place or what was said regarding their right to the custody of the child. Appellants, in...