Walker v. Williams

• Decision Date: 14 April 1952
• Docket Number: No. 38360,38360
• Citation: 214 Miss. 34,58 So.2d 79
• Parties: WALKER v. WILLIAMS et ux.
• Court: Mississippi Supreme Court

Page 79

58 So.2d 79

214 Miss. 34

WALKER v. WILLIAMS et ux.

No. 38360.

Supreme Court of Mississippi.

April 14, 1952.

Fulton Thompson, Jackson, for appellant.

Will S. Wells, Jackson, for appellees.

McGEHEE, Chief Justice.

In this habeas corpus proceeding the petitioner, Annie Ruth Walker, seeks to obtain from Fannie B. Williams and her husband, Isaiah Williams, the legal custody of petitioner's illegitimate son who was more than three years of age at the time of the filing of the petition, he having been born on March 31, 1948, at Jackson, Mississippi, in the home of the appellee-defendants, Fannie and Isaiah Williams, where he has remained since birth. The trial judge denied the relief and dismissed the petition At the hearing, the made no finding of fact as to the particular ground upon which he based the decision appealed from, and we must therefore assume in support of the judgment rendered that he found on disputed issues of fact in favor of the defendants.

The defendants predicate their legal right to retain the custody of the child mainly upon the fact of its alleged abandonment by its mother at or about the time of its birth, and for a long period thereafter, under the following state of facts and circumstances, to wit:

The petitioner, who was twenty-three years of age and unmarried at the time she became pregnant with this child, claims to have been seduced and betrayed by a Negro named Melvin Mellett under a promise of marriage, who broke his promise to her and left Jackson and took up his abode elsewhere after she became pregnant in July 1947. She had also met Tillman Walker while she was teaching school at Inverness, Mississippi, where he then resided. She later returned to Jackson, where Tillman Walker became a patient at the U. S. Veterans Hospital and he began to get passes out of the hospital for visits to her during the week-ends in August of 1947, and finally was seeing her at least once a week during October, November, and December of that year, and through January 1948, until they were married on February 5, 1948. At the time of her marriage to Tillman Walker, she claims that he did not know of her condition, although she had then been pregnant for a period of about seven months, and he had been seeing her at least once a week for quite a while prior to their marriage. At any rate, on the next day after their marriage, which they had agreed to keep secret, he returned to Inverness and did not see her again, although she remained in Jackson, until some time after the child in question was born, when they then began living together while he was a student at Jackson College.

It appears from the testimony on behalf of the defendants that in January 1948 before the mother of the child married Tillman Walker on February 5, 1948, she contacted one Annie Lowrey, now Annie Davis, a midwife, and endeavored to persuade her, for the price of $50, to help destroy the child before it was born and was advised by the midwife that the latter would not agree to help her out in this undertaking, but it was suggested by the midwife that she knew of a couple (meaning Fannie and Isaiah Williams) who wanted a child and that Fannie Williams would likely agree for her to give birth to the child in their home if the mother would agree to let her have the child; that the petitioner and the midwife contracted Fannie Williams in that behalf and ascertained that while she and her husband wanted a child they did not want an infant but wanted a child two, three, or four years of age; that she then proposed to Fannie Williams in the presence of the midwife that they both help her to destroy the child and stated that otherwise she woul destroy it after it was born; and that thereupon Fannie Williams undertook to arrange for her to get a room at the home of one Lizzie Daniels, and upon finding that the room would be $5 per week and that the prospective mother was unable to pay this amount, Fannie Williams advised Lizzie Daniels to go ahead and rent her room to someone else, since she was unwilling to pay the rent for an indefinite period.

It was further shown that thereafter Fannie Williams undertook to persuade the petitioner to go to a hospital in Jackson to have the baby but the latter did not want her condition to become known and therefore declined to enter the hospital; that the petitioner stated that she had taken everything that she knew to take to try to get rid of the child and had failed; that a blood vessel in the eye of the petitioner had become ruptured, and whereupon Fannie Williams got someone to take her to a hospital in Yazoo City for immediate treatment, gave her $20 to help out with the expenses, and caused the petitioner to be left at the hospital on the promise that if she would remain there for the birth of the child Fannie Williams would stop by and get the baby when the mother was ready to leave the hospital; that after remaining there for about three days and learning that there were persons there who knew her, the petitioner left the hospital and returned to Jackson; and that on Feb. 6, 1948--the next day after her marriage to Tillman Walker--she went back to the home of Fannie Williams and had an agreement that she should give birth to the baby there in her home.

The petitioner denied having made any request of either the midwife or Fannie Williams that they help her to destroy the child before it was born, or that she threatened in advance to kill it after it was born if they refused to help her. Therefore this issue of fact was for the determination of the trial judge on the conflicting testimony at the hearing on the habeas corpus proceeding. At any rate, she remained in the home of Fannie and Isaiah Williams from February 6, 1948, until April 5 or 6, 1948, and left the child there, expressly declining to take it with her, after being urged to do so, according to the testimony on behalf of the defendants; but according to the testimony of the petitioner, she left the child there pursuant to an agreement had with Fannie Williams before its birth, that is to say, Fannie and her husband were to be allowed to keep the child in consideration of their having allowed its mother to remain in their home until it was born.

Of course, under the leading case of Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L.R.A. 839, and the case of Bullard v. Welch, 171 Miss. 833, 158 So. 791, 792, and other cases decided by this Court and many other courts, a parent of a child can not irrevocably surrender the right to its custody by a contract in that behalf, even if the same had been made at a time when the parent was not in great distress and was a free agent, such a contract being void as against public policy.

The proposition is too well-settled to require the citation of authorities, other than the case of Hibbette v. Baines, supra, that it is presumed to be to the best interest of a child for its parent to have its care and custody unless the parent is shown to be an unsuitable person to have the care and custody or has abandoned the child. The primary question in the instant case is whether or not the facts are such as to show an abandonment in a legal sense. We have therefore thought it proper and necessary in this case to set forth the facts somewhat in detail.

In further reference to the alleged abandonment of the child by its mother, it was shown on behalf of the defendants that on Saturday afternoon, following the birth of the child on Wednesday, the doctor returned to the home of the defendants, and in the presence of the midwife, obtained the information from the petitioner herein as to how the birth certificate should be filled out and filed with the Bureau of Vital Statistics; that the information furnished the doctor by the petitioner was that the father of the child was Isaiah Williams and that the maiden name of the mother was Fannie B. Coleman (now Fannie B. Williams); that the said Fannie Williams was not then in the bedroom where the information was furnished, but returned to the room, and at the request of the real mother of the child, wrote at the bottom of the certificate 'O. K. Fannie B. Williams'; that the doctor had not formerly known any of the parties but of course knew that he had attended the woman who was in the bed and who was giving him the information for the birth certificate; and it appears that the birth certificate, as thus filled out, giving the child's name as Gerald David Williams, was filed as a public record in the office of the Bureau of Vital Statistics at Jackson, Mississippi.

Assuming that it was the mother and petitioner who furnished the doctor the wrong information as to who the parents of the child were, since the trial judge had a right to so find from the testimony of the midwife and Fannie Williams, then this action on her part was a strong circumstance to indicate that she did not intend to have her identity as the mother of this child to become known in the future, and that she had determined to completely abandon its care and custody to the defendants, with the intention to shirk or evade the duty and the trouble or expenses of rearing it. As against this circumstance, the trial judge had before him the testimony of the petitioner, whereby she denied having had anything to do with furnishing the information for the filling out of the birth certificate, and also her testimony that she left the child at the home of the defendants in keeping with her solemn agreement with them in that behalf.

Moreover, it was further shown on behalf of the defendants that the petitioner would not nurse the child, refused to have anything to do with it, stated that she did not want it, would not have it, and did not return to the home of the defendants to see the child until about one year and two months after its birth and again when it was about two years of age, but made a third and last visit there to see if they would return the child to her about...