Jensen v. Earley

• Decision Date: 17 July 1924
• Docket Number: 4161
• Court: Utah Supreme Court
• Parties: JENSEN v. EARLEY et al

228 P. 217

63 Utah 604

JENSEN v. EARLEY et al

No. 4161

Supreme Court of Utah

July 17, 1924

Appeal from District Court, First District, Cache County; T. H Burton, Judge.

Proceeding by Elva Jensen against William C. Earley and another, to reclaim a child. Judgment for defendants, and plaintiff appeals.

REVERSED AND RENDERED.

L. E Nelson, of Logan, for appellant.

J. C Walters, of Logan, for respondents.

FRICK, J. GIDEON, THURMAN, and CHERRY, JJ., concur. WEBER, C. J., did not participate.

OPINION

FRICK, J.

Elva Jensen, hereafter designated plaintiff, on the 8th day of December, 1923, filed a petition in the District Court of Cache county, Utah, in which she, in substance, alleged that she is the mother of an infant child which, without her consent, is unlawfully and wrongfully detained by the defendants. The facts respecting the alleged unlawful detention and custody are fully stated in the petition and in view that we shall state the facts hereinafter it is not necessary that we refer to the pleadings except to state that the defendants denied the unlawful detention and custody of the child and averred that they are the lawful custodians thereof, stating their version of the facts in that regard.

We remark that we have changed the title of the case to conform to our statute and to the uniform practice in such cases in this court. In view of our statute this case should be entitled by designating the person bringing the proceeding as plaintiff and the persons against whom the petition is filed should be called defendants.

The evidence adduced on behalf of the plaintiff in support of her petition, in substance, shows that on the 14th day of April, 1923, the plaintiff, who was unmarried, and then about 17 years and 8 months of age, gave birth to the child in question here. The plaintiff lived at home with her parents, who resided at Hyrum, Cache county, Utah, and who are people of middle age, both being under the age of forty years. The father of plaintiff is a farmer and stock raiser, and owns a farm near the town of Hyrum and a comfortable dwelling house in said town. Some time in December, 1922, and a considerable time before the child was born, plaintiff's mother called on Dr. Eliason, who then lived at Logan, Utah, about seven miles from Hyrum, but who some time theretofore had lived and practiced his profession at Hyrum, and was the family physician of the Jensens. The mother says she went to the doctor for the purpose of engaging him to attend to plaintiff in her approaching confinement, which, however, was not expected to occur for some time. The mother, with considerable detail, informed the doctor of plaintiff's condition and of the impending disgrace and trouble, and how discouraged she was, and how badly she felt about the coming event. The mother had gone to the doctor without consulting or informing the plaintiff, and she testified that the doctor at that time suggested that he thought he could find "a good home for the child if you wish to dispose of it." The mother called on the doctor again in the February following before the child was born, and she and the doctor went over the impending scandal incident to plaintiff's confinement, again, and according to her statement, the doctor then told her, "I have found a good home, Mrs. Jensen, if you want to dispose of the baby." At that time the doctor also gave some directions respecting the care that plaintiff should receive, so that she would be physically prepared for the coming event. When plaintiff was about to be confined, and after she had felt some labor pains, the plaintiff's mother notified the doctor and he and a nurse arrived at plaintiff's home about 3 o'clock in the afternoon of the 14th of April, and at about 3:30 the plaintiff was delivered of a child, and about 4 o'clock the doctor and nurse left plaintiff's home taking the newborn babe with them, and immediately delivered the same to the defendants, who then lived somewhere near Logan.

Both the mother and the plaintiff testified that at the time the child was born nothing was said about the child being taken away, and the grandmother, who was present at the time the child was born, also testified that she heard nothing said about the matter. The doctor, however, testified that after the child had been born, and when it was in charge of the nurse, he went into the room where plaintiff was in bed, and asked her, "What do you want me to do with the child?" and she said, "I want you to take it to the home you have found for it; I don't want to see it." The plaintiff, however, testified that she made no statement to the doctor at any time, and that she remembers nothing of what occurred immediately after the child was born. Plaintiff's mother also testified that she heard no such statement, and no one present at the home heard it. The nurse, who was a witness on behalf of defendants, and was present at the time the child was born, was also silent respecting the statement. In fairness to the doctor it should be said, however, that there was no one in the room where the plaintiff was lying in bed except the doctor and the plaintiff at the time the doctor says the statement was made.

The doctor also denied that he suggested to plaintiff's mother the disposal of the child. He insisted that the mother suggested that some good home be found for the child when it should arrive.

The evidence further shows that plaintiff's mother never consulted the plaintiff about the matter, except that at one time the mother some time before the child was born, informed the plaintiff that the doctor had suggested that a good home with some good people might be found for the baby, and that plaintiff at the time said that perhaps that would be the best, but that the matter was not mentioned after that time.

It is also made to appear without any substantial dispute that within a short time after the child was born and taken away, as before stated, the plaintiff began to worry and grieve about the baby, and discussed the matter with her mother; that within 33 or 34 days after the child was taken from the plaintiff the mother went to the doctor and informed him that plaintiff was grieving and worrying over the child, and told the doctor that the plaintiff wanted the child back, and asked in whose custody it was; that the doctor told the mother that the child was in a good home, and that plaintiff should cease her grieving and worrying, and should forget the incident. Shortly after that the mother of plaintiff went to the doctor again, and informed him of plaintiff's grieving, and about the same conversation as at the former meeting occurred between her and the doctor. The mother, however, demanded to know who the people were that had the child, and where they lived. The doctor told the mother that their name was Earley, but she did not learn from the doctor where they lived. After that plaintiff's father consulted a lawyer and on or about the 1st day of October plaintiff and her father and mother learned where the defendants lived, and, with the lawyer, called on them and demanded the child, and then offered to pay them any reasonable sum for the trouble and expenses they had incurred in the meantime. The defendants refused to surrender the child, and this action followed.

The evidence is also to the effect that plaintiff's father has property worth about $ 20,000, and that he has a comfortable home; that both he and plaintiff's mother are desirous of having plaintiff obtain the child, and in case anything should happen, to the plaintiff the father and mother are both able and willing to adopt the child as an equal heir with their other four children. Nor, according to the testimony of neighbors, is there any question concerning the plaintiff's and her parents' moral fitness to rear the child.

Upon the other hand, the evidence shows that the defendants are perhaps several years older than plaintiff's father and mother; that they have no children of their own, and have never had any, but have adopted a little girl who is living with them; that they always were very desirous of obtaining a boy also, and, to accomplish this purpose had spoken to the doctor before the child in question was born; that defendants have no home in Utah, but own some land in Canada, the value of which is not shown, except, perhaps, that at present it has no great value, and that the moral fitness of the defendants to rear the child is not questioned.

From a careful reading of the testimony of plaintiff's mother as the same appears in the bill of exceptions, we are convinced that she was much concerned with plaintiff's condition, and that she was greatly perturbed in mind respecting the fact that plaintiff was about to give birth to an illegitimate child, and, to avoid so far as possible what to her seemed a scandal, she, without consulting plaintiff, came to the conclusion that it was best to place the infant with some good family. It is also equally clear from the doctor's testimony that, in view that he had interested himself in the matter, and had found the defendants, who were willing to take and did take the infant, it was his duty to do all within his power to have the child remain in the custody of the defendants. We do not make the foregoing observations in a spirit of criticism of the plaintiff's mother, or of the doctor, but do so merely to show that the plaintiff should not be required to bear the results of the manifest interests of these two witnesses, but should be judged in the...