Hutchinson v. Hutchinson

GRAY, C. The respondents are the twin daughters of defendant. Their age at the time of the trial ivas sixteen years. They base this action against their father upon section 203 of the Civil Code, which provides as follows: “The abuse of parental authority is the subject of judicial cognizance in a civil action brought by the child . ... . and when abuse is established the child may be freed from the dominion of the parent, and the duty of support and education enforced.” The judgment is that plaintiffs be freed from the parental dominion of their father, and that he pay to their guardian twenty-five dollars a month for their support and education. From this judgment and from an order denying a new trial defendant appeals.

The evidence shows that defendant is a hard-working man, a machinist by trade, and as such earns from sixty to eighty dollars a month; that his wife died some ten years before the trial of this case, and that since her death he has had sole care of plaintiffs until they ran away from home; that his family, of late years, has consisted of these two girls and his son Willie, who was some ten or twelve years of age at the time of the trial; that defendant, by reason of his occupation, was necessarily away from home much of the time. In December, 1895, the father was obliged to leave his home in San Francisco and remain absent from the city for several months. During such absence the daughters drew his wages from his employer and invested much of them in clothes and theater tickets. When the father returned and learned of this he upbraided his daughters, ivhipped them, and sent them to bed. On the next morning he again whipped them and kicked one of them because they did not have breakfast ready at the usual time. They then decided to run away and hid themselves in the basement of their divelling, where they stayed three days, after Avhich they went to the Orlando House, and after staying there one night they were arrested by the police and taken to the police station, and from there the father took them home, accused them of having men with them at the Orlando House, which they stoutly denied, struck them with his hand and sent them to bed. A few days after this, in March, 1896, the defendant missed a silver Avatch and inquired of the daughters concerning it; their answers Avere unsatisfactory to him, whereupon he charged them Avith lying [679]and gave them an unmerciful beating, using therein a cane and a poker. The plaintiff Helen testifies that in the course of this beating the defendant took her by the throat and knocked her on the floor, kicked her on the side, and punched her in the stomach with his fist and left her partially unconscious. The next morning the daughters ran away again and lived for three weeks thereafter under the stairs leading to an empty house on Folsom street, when they were again taken in charge by the police and conveyed to the city prison at the Hew City Hall. The defendant called on them there and told them he would not take them home again, but would turn them over to the police authorities. Their father now becoming discouraged in his efforts to keep his daughters under control, they were, by his consent, taken to the Hill home, from which place early in June, 1896, they were taken by their guardian ad litem herein, Mrs. Burnett, to her home on Broadway street in San Francisco, their father agreeing to pay her twenty-five dollars a month for their support. From that time down to the commencement of this action, some four months later, the children remained with Mrs. Burnett, to whom they have become much attached, and she desires them to remain with her. She testified that the children are mild mannered and gentle and seem to be much in fear of their father. The father and daughters have been on friendly terms and have gone walking together and have corresponded, and he has visited them since they have been wiiii Mrs. Burnett, but it appears he finally concluded that Mrs. Burnett was trying, in his own language, “to rule over” him in the matter of what the children should wear, and he threatened and intended to take the children away from her against the will of all concerned except himself. There is also evidence tending to show that a short time prior to the children running away the defendant had thrown a tea-cup at one of them and had struck one of them with a hammer, and at another time had thrown a frying-pan at one of them, that he frequently whipped them with a leather strap about eighteen inches long, an inch wide, slitited at the ends, and denominated a “cat-o’nine-tails.” It also appears from defendant’s testimony that this strap had been a cherished instrument of punishment in the family from the infancy of defendant’s oldest child, now