Ware v. Muench

Decision Date13 December 1935
Citation89 S.W.2d 707,232 Mo.App. 41
CourtMissouri Court of Appeals

Motions for rehearing overruled December 19, 1935.

Motion to modify decree overruled December 19, 1935.

Original proceedings in habeas corpus for custody of minor child.


Habeas corpus proceeding by Anna Ware, an infant, by Mary Ware, her next friend, against Ludwig O. Muench and others, for the custody of a child.



Thomas Bond, William L. Berthold and Harry C. Barker for petitioner.

Paul Dillon and Edgar J. Keating for respondents Ludwig O. and Nellie Tipton Muench.

Shepard R. Evans for respondent Wilfred Jones.

Harry N. Soffer for respondent Helen Berroyer.

Anderson Gilbert & Wolfort for respondent Rebecca Winner.

Jerome F. Duggan for respondent Carl M. Dubinsky.

Rush H Limbaugh, Special Commissioner.

LIMBAUGH, S. C. Becker, P. J., in the case, and Hostetter and McCullen, JJ., concur.



This is a habeas corpus proceeding involving the identity and custody of a child some three months of age.

The case originated in this Court upon the petition of Anna Ware, a minor of the age of nineteen years, acting through her sister and duly-appointed next friend, Mary Ware. By her petition Anna Ware charged the respondents with wrongfully and unlawfully taking away from her a male child born to her in the City of St. Louis, Missouri, on August 17, 1935, and keeping, imprisoning and withholding the child in the home of respondents Dr. Ludwig O. Muench and Nellie Tipton Muench, who falsely claim it as their own, and depriving it of its liberty, and its mother, the petitioner, of its care and custody. The petition contained a prayer that a writ of habeas corpus be issued against respondents, and that the child be discharged from its unlawful imprisonment and restored to the possession and custody of the petitioner. The petition was verified as required by statute.

Responsive to the prayer of the petition, this Court issued and caused to be served on each of the respondents a writ of habeas corpus. On the return day of the writ, respondents Muench filed a verified joint return denying generally that they had possession or custody of or anything to do with or any knowledge of the taking, keeping, imprisoning, withholding or restraining of petitioner's baby, or that they were depriving petitioner of its possession, custody or control, and denying that petitioner's child was being wrongfully and unlawfully kept and restrained of its liberty in their home. Respondents Muench by their joint return did not aver or claim that the child later shown to be in their home was their child. Each of the other respondents filed a separate verified return of the same general purport.

To these returns petitioner filed separate replies in the nature of traverses, denying generally and specifically the averments in the returns. In the reply to the return of respondents Muench, petitioner alleged that about one hour after her child was taken from her on the night of August 17, 1935, it appeared in the home of respondents Muench, who, on the following day, made a false public announcement that a male child had been born to Nellie Tipton Muench at 12:30 A. M. on August 18, 1935, but that Nellie Tipton Muench did not give birth to such child or any child, and that her claim that she was the mother of the child in her home was false. By her said reply petitioner further charged that the child in the home of respondents Muench was unlawfully procured and taken away from petitioner on the date of its birth by respondent Wilfred Jones and other unknown persons in the perpetration of an unlawful conspiracy on the part of the respondents, the main purpose of which was to procure for respondents Muench a baby which they could palm off on the public as their own. Petitioner filed replies to each of the returns of the other respondents, denying generally and specifically the allegations contained in said returns.

When the issues were thus joined, this Court appointed the undersigned as Special Commissioner to hear the testimony and report his findings of fact and conclusions of law and recommendations to the Court. After the Special Commissioner qualified, hearings were held before him, continuing through a period of nearly four weeks, at which hearings the petitioner produced fifty-six witnesses and the respondents thirty, and each side, in addition, produced various kinds of exhibits, including letters, photographs, court files and other documents.

During the course of these hearings, the Special Commissioner exercised a policy of great latitude in the admission of evidence, owing to the character of the issues and to the fact that the welfare and destiny of a child of tender age are involved and its identity and parentage questioned. Respondents made objections to parts of the evidence offered by the petitioner, some of which evidence was taken with the case subject to the objections, with the understanding that such objections were to be ruled with the case, and such evidence, if found inadmissible, disregarded; and now, as a part of his report, the Special Commissioner sustains all of said objections.

Before finishing with the production of her evidence, petitioner voluntarily dismissed the proceedings as to respondents Rebecca Winner and Carl M. Dubinsky, leaving Ludwig O. Muench, Nellie Tipton Muench, Wilfred Jones and Helen Berroyer as the sole remaining respondents in the cause.

During the course of the hearings, the Special Commissioner entered an order requiring respondents Ludwig O. Muench and Nellie Tipton Muench to produce in court the child theretofore shown to be in their home, so that said child, whose identity was in issue, could be viewed, examined and identified, and be held, under order of the Court or Special Commissioner, subject to view, examination and identification by the Court and Special Commissioner and the parties to the cause and their counsel and witnesses. A writ of prohibition to restrain the Special Commissioner and the Judges of this Court from enforcing such order was applied for by respondents Muench in the Supreme Court of Missouri, and pending action on such application in the Supreme Court said order was held in abeyance. The Supreme Court of Missouri denied the writ of prohibition, following which respondents Muench produced in court the child in their home, whereupon this Court ordered that the child remain in the custody of the Court and be kept in the St. Louis Children's Hospital, in St. Louis, Missouri, under all due and proper care. That order remains in effect, and the child is now in the St. Louis Children's Hospital, pending final determination of this cause.

While the ultimate issue in this case is like that ordinarily involved in a habeas corpus proceeding in the sense that it is to determine who has the right to the custody of a child, the determination of that issue here involves a problem of much greater import and one charged with far graver responsibilities than is usually presented for decision. The final issue upon which the case turns is, of course, should the baby now held by this Court be placed in the custody of petitioner, Anna Ware? But the immediate question preceding the determination, and indeed decisive, of such main issue is the identity of the child. Is this baby the child of petitioner? If it is, it follows, as day follows night, that the child should be placed in petitioner's custody. If it is not, then the purpose of this proceeding fails, and the prayer of the petitioner that the child be placed in her custody through the use of the writ herein issued should be denied.

For the determination of the issue of identity, there is scarcely a precedent. Even the Scriptural story related as evidence of the wisdom of a renowned ancient king (1 Kings 3:16-28) does not present an exact parallel or furnish practical aid here for the solution of the problem of identity. The evidence offered by the parties to the cause and the inferences to be legitimately drawn therefrom must alone furnish the key for the determination of that problem.

The evidence shows, as we shall presently point out, that the child now in the custody of the Court, and about which this case revolves, is the same child that first appeared in the home of respondents Muench in the City of St. Louis, Missouri, either on the evening of August 17 or the early morning of August 18, 1935. It is the same child that had been in the home of said respondents almost continuously from that time until it was produced in this Court upon the order of the Special Commissioner on October 30, 1935.

Did Mrs. Muench give birth to the child as respondents' evidence, in a general way, purported to disclose? Petitioner charges that she did not, and the evidence abundantly supports that charge. Mrs. Muench is forty-four years of age. She had been married twenty-three years before her purported birth of this child, and had never before borne a child. Childbirth for any childless woman of her age would have been attended with great difficulties and personal dangers. For such a critical event in the life of any woman, and particularly that of the wife of a physician, living on a plane like these respondents in a large city hospitalization, expert medical attention and skilled nursing are all considered indispensable to the life and...

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