author: MAUGHMER, Commissioner.

text:
    Jo Ann HOWARD, Individually and as Natural Guardian and Next Friend of Stephen Lee Howard, Carl Edward Howard, William Lester Howard and Emmett M. Howard, Jr., Appellant, v. FORD MOTOR COMPANY, Respondent.
    No. 23536.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dee. 3, 1962.

      John C. Thurlo, Henry G. Eager, Winston V. Buford, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for appellant.
    Jack W. R. Headley, Irvine O. Hocka-day, Jr., Kansas City, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

We have here a claim and suit for workmen’s compensation benefits. After an extended hearing the referee denied the claim. The Industrial Commission affirmed as did the circuit court and claimant has appealed. The referee found:

(1) The employee, Emmett Howard, sustained an accident on June 18, 1959, “arising in the course of his employment with Ford Motor Company”, but “said accident did not arise out of said employment”.
(2) “That the accident occurred when Emmett Howard suffered an insulin reaction which caused him to fall and thus his fall was the result of his own diseased condition and was not in any way a consequence of or caused by his employment”.
(3) “There being no causal connection between his employment and his accident, compensation must be and the same is hereby denied”.

Upon appeal the commission unanimously affirmed the award and findings of the referee.

The employee, Emmett Howard, died on January 24, 1962, admittedly from causes not resulting from injuries sustained in the accident in question. His widow individually and as next friend for the dependent children was duly substituted as claimant. Since the referee and commission found that the accident was not com-pensable, no determination was made as to the extent of disability, the medical estimates as to which varied considerably. However, it does not affirmatively appear that an amount in excess of $15,000 is involved, hence jurisdiction rests with this court.

On June 18, 1959, the employee, Emmett Howard, was thirty-two years of age, stood five feet and four inches in height, and had been employed by respondent Ford Motor Company for about seven years. On this particular day he was working as a repairman. He had been a recognized diabetic for five years. In an effort to control the diabetes he regularly took insulin —self-administered protamine zinc insulin. His daily dosage was 25 units. Prior to the June 18th incident he had suffered four separate and severe fainting attacks. The first occurred at his home early one morning and before he had eaten breakfast. The other three came on late in the afternoon while he was working around his home on the outside and when he had neglected to have lunch. On each of these occasions orange juice revived him. The evidence shows that Mr. Howard was of normal intelligence. He had served 16 months in the navy, had been mayor of Camden, Missouri, and was generally regarded as a good workman.

Immediately prior to the accident in question, he appeared normal to fellow employees. He was working on Assembly Line No. 3 at respondent’s Claycomo plant. He had made an adjustment on another line and returned to No. 3. This assembly line platform was 4 feet, 7 inches in width and 12½ inches in height from the surrounding concrete floor. The accident occurred about 4:00 or 4:30 p. m. Mr. Howard testified: “I stepped up on the line and my old leg, it’s bad now, slipped and I started to step with the other and that’s when I fell, knocked the other one right out from under me, just like I didn’t have no leg”. He fell and his head apparently struck the concrete floor. Fellow workers found him comatose and bleeding from the nose, ears and mouth. Some of them observed spasmodic movements of the arms and legs and he then became motionless. The company nurse gave him orange juice, which he immediately vomited. There was involuntary urination.

The patient was transferred to the North Kansas City Memorial Hospital and admitted to the emergency room at 6:10 p. m. He remained there 23 days and until July 11th. For the first few days he remained practically comatose, unresponsive and drained blood and spinal fluid from his ears. X-rays revealed a temporal parietal non-compressed skull fracture. He had a right facial paralysis, loss of memory and diminished hearing. His diabetes became labile and difficult to control. He spent 7 days (July 20-27, 1959) in a Lexington, Missouri hospital, where he was treated for his diabetes. On August 21, 1959, he suffered an epileptic seizure and was hospitalized for 8 days. From September 6 to September 11, 1959, he was in the Ray County hospital for treatment of thrombophlebitis of the left leg, then transferred to the Veterans Hospital in Kansas City, where he remained until October 19, 1959. His over-all condition apparently deteriorated. There was loss of memory and mind destruction. Six doctors called by appellant declared him to be totally and permanently disabled.

Gary DeLouis, a fellow employee, was working on Assembly Line No. 3 and said he saw the employee fall. DeLouis stated he was 5 or 10 feet from Mr. Howard, that “he was looking straight at me and he had his hands up to his side, close to his body, and his hands and whole arms were shaking nervously. I am demonstrating here how he appeared and I have my fists clinched and have them up together at my chest and I am moving them back and forth. I saw this man stand there shaking in this manner possibly four to six seconds. He appeared to be trying to talk to me but I couldn’t hear a word from him. He just fell over backwards off the line. * * *. He made no effort to catch himself or to throw up his arms as he fell, and his arms were still shaking as he was falling. He did not yell out. I went over to him and both his feet were still up on the line and somebody pulled them down.”

Drs. Edward C. Weiford, neurological surgeon, and Dr. Fred H. Lundgren, internal medicine, called by the employer, expressed the opinion that the fall was caused by an insulin reaction. These physicians described an insulin reaction as a situation where the blood sugar in an individual lowers to a point where it produces symptoms of weakness, trembling, difficulties in orientation, and convulsive seizures. Unconsciousness can come within seconds.

On appeal appellant, while not concurring in the correctness of the commission’s finding that the employee’s fall was caused by an insulin reaction, concedes there was sufficient probative evidence to support such a finding. She presents only one assignment of error, which we incorporate verbatim herein.

“Assuming that Mr. Howard’s fall was due to a fainting spell induced by an insulin reaction, the commission and circuit court both erred in denying compensation because the uncontradict-ed evidence clearly establishes a causal connection in law between the conditions under which his work was required to be done and the resulting injuries and, thus, necessarily arose out of his employment within the meaning of the Compensation Act”.

The testimony heard by the referee was voluminous. We deem it unnecessary to incorporate all of it in this opinion, witness by witness, exhibit by exhibt, for two reasons : First, our statement of the facts does, we think, constitute a fair, concise and sufficient statement of the essentials. Second, appellant concedes the conclusion that the fall was caused by an insulin reaction is justified by the evidence. Tersely stated, claimant’s contention is that the employee’s head injuries and resultant disability came about because he fell 12½ inches from the assembly line and struck his head on the concrete floor and that the raised platform and hard floor each constituted special and hazardous working conditions arising out of the employment, without which he would not have sustained the injuries, or at least some of them.

An appellate court must view the evidence upon which the commission made its award, in the light most favorable to the successful party below. Harper v. Home Imp. Co. et al., Mo., 235 S.W.2d 558. Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the commission. Both courts are authorized to determine if the award of the commission is supported by competent and substantial evidence upon the whole record. Long v. Mississippi Line Co. of Mo. et al., Mo.App., 257 S.W.2d 167, 170, and cases cited. Kansas City v. Rooney, Mo. en Banc., 363 Mo. 902, 254 S.W.2d 626. The reviewing court may determine if the commission could have reasonably made its finding and reached its result. Seabaugh’s Dependents v. Garver Lumber Mfg. Co., et al., Mo. en Banc., 355 Mo. 1153, 200 S.W.2d 55, 62. It is incumbent on claimant to establish that the accident arose out of the employment. Huskey v. Kane Chevrolet Co., Mo.App., 173 S.W.2d 637; Toole v. Bechtel Corporation et al., Mo., 291 S.W.2d 874.

Our Workmen’s Compensation Law (Sec. 287.120, subd. 1, V.A.M.S.) requires the accident to be one “arising out of and in the course of” the employment in order to be compensable. As stated by this court in Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 298, “These are separate tests and each must he satisfied”.

Appellant has cited 27 cases (five of which are from Missouri courts) in support of her position. Respondent has invited our attention to 21 cases which, it contends, uphold a contrary conclusion. We have examined these authorities, will refer to some of them particularly, and present our views as to the proper conclusions which should result from their application to our facts.

Larson’s Workmen’s Compensation Law, Vol. 1, pp. 158, 159, 160, gives us this general statement:

“When an employee, solely because of a non-occupational heart attack, epileptic fit or fainting spell, falls and sustains a skull fracture or other injury, the question arises whether the skull fracture (as distinguished from the internal effects of the heart attack or other disease, which of course are not compensable) is an injury arising out of the employment.
“The basic rule, on which there is now general agreement, is that the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. The currently controversial question is whether the effects of an idiopathic fall to the level ground or bare floor should be deemed to arise out of the employment”.

Larson continues his discussion and declares the simple rule, theory or requirement ought to be “that although the cause of the fall was originally a personal one, employment conditions contributed some hazard which led to the final injury” He expresses his opinion that this theory has been strained to the breaking point by the court in General Ins. Corp. v. Wickersham, Texas Civ.App., 235 S.W.2d 215, which allowed recovery for an idiopathic fall to a level floor, and declared this no different from a fall from a dangerous height or into a hole or against some sharp object.

In Savage v. St. Aeden’s Church et al., 122 Conn. 343, 189 A. 599 (1937) the Supreme Court of Errors of Connecticut in a 3-2 opinion allowed recovery where the employee, who was subject to heart attacks, fell on a level concrete floor. In Irby v. Republic Creosoting Co., 228 F.2d 195, the Fifth Circuit U. S. Court of Appeals allowed recovery under the Alabama law where an employee had an epileptic seizure and fell from a three foot platform and dislocated a vertebrae. The Kentucky Court of Appeals in Stasel v. American Radiator & Standard Sanitary Corp., 278 S.W.2d 721, affirmed an award where an employee, after an epileptic seizure, fell against a hot stove.

Unquestionably an idiopathic fall from an inherently dangerous height would meet the requirement of a hazard in the employment conditions. The least height on which a recovery was allowed under this theory (based upon the research of Larson and appellant) was perhaps 22 inches from the third or fourth step of a stairway. However, the opinion in Milwaukee Elec. Ry. & Light Co. v. Industrial Comm. of Wisconsin et al., 212 Wis. 227, 247 N.W. 841, is by the Supreme Court of Wisconsin and the court very carefully pointed out that under the Wisconsin Workmen’s Compensation Act it was not necessary that the accident or injury “grow out of” the employment.

Many courts in other jurisdictions have reached somewhat different conclusions. The Supreme Court of North Carolina in Bagwell v. Ernest Burwell, Inc., et al., 227 S.C. 444, 88 S.E.2d 611, held that a physical seizure unrelated to the employment is not such an “accident” as is compensable under the Workmen’s Compensation Act. And that where an employee died as a result of striking his head against the concrete floor during the course of his employment, when he suddenly became rigid and fell backward, compensation was not allowable.

In Dasaro v. Ford Motor Co., 280 App.Div. 266, 113 N.Y.S.2d 413, the Supreme Court, Appellate Division, State of New York, portrayed the rule existing in that jurisdiction by three references as follows: (1) A teamster fell from his driver’s seat; two wheels passed over his head and he died. The injury was treated as arising out of employment because even assuming the fall to have been the result of illness, the wheels of the wagon were regarded as increasing the general hazard. (2) The employee walking along, an alleyway to a water faucet suffered an epileptic fit, fell to the concrete walk, injured his head and died. The accident was held not to have arisen out of employment. (3) Employee, a laundry worker, fell due to a cardiac condition. In the fall she struck her head against a table which was part of the laundry equipment and was injured. The table was regarded as a special hazard and associated with the work.

In Henderson v. Celanese Corp., 16 N.J. 208, 108 A.2d 267, the Supreme Court of New Jersey in a divided opinion denied recovery to a claimant who had an epileptic, seizure and fell on the concrete floor of the company plant suffering a cerebral concussion.

The Supreme Court of Illinois in Prince v. Industrial Comm. et al., 15 Ill.2d 607, 155 N.E.2d 552 (1959) holds with this latter group. There claimant suffered a seizure and fell on a concrete floor which was not level and had cracks in it which varied in width from ⅛ of an inch to ¼ inch and penetrated into the concrete from an eighth of an inch to perhaps one inch. Claimant died as a result. The court said at page 554 of 155 N.E.2d:

“Whether an injury due to an idiopathic fall on a level floor may be said, as a matter of law, to have arisen out of the employment is a question of first impression in this State. There is a sharp division of opinion among those jurisdictions that have had occasion to consider the question. See cases cited in 99 C.J.S. Workmen’s Compensation § 257(1). Counsel for plaintiff in error and for defendant in error have been most helpful with their discussion and analysis of the cases from foreign jurisdictions. We have considered them carefully and are in accord with those holding that concrete floors present no risk or hazard that is not encountered in many places, and that such risks and perils as they do present are only those which confront all members of the public. See, e. g., Cinmino’s Case, 251 Mass. 158, 146 N.E. 245, 37 A.L.R. 769; Andrews v. L. & S. Amusement Corp., 253 N.Y. 97, 170 N.E. 506.”

Both parties have referred us to the Missouri case of Seabaugh’s Dependents v. Garver Lumber Mfg. Co. et al., 355 Mo. 1153, 200 S.W.2d 55. There the employee was on a wagon three feet high “jacking lumber”. He suffered a heart attack and fell. His neck was broken. The evidence was not conclusive or definite as to whether he had died from a heart attack and then fell or if he suffered a heart attack, fell and died from the broken neck. As we read the opinion the court held the burden was on plaintiff to prove the cause of death and there was no substantial evidence that the cause of death was a broken neck. Therefore, the award for claimant, approved by the circuit court and the St. Louis Court of Appeals, was reversed. This opinion does not, we think, rule our case, although it does indicate that a fall of three feet from a wagon required to be used in the employment, would meet the requirements and be compensable.

The Springfield Court of Appeals in Gregory v. Lewis Sales Co. et al., 348 S.W.2d 743, 747, recently gave adherence to the theory that the evidence must show the employee was "exposed to a hazard connected with his employment not common to the general public” and affirmed a denial of the claim for benefits, where an employee “on the job” suffered injuries when a non-employee pulled a chair on which he was sitting from under him.

The majority rule in the idiopathic fall cases apparently is that the evidence must show a hazard connected with the employment not common to the general public or a special risk peculiar to the employment which caused or substantially contributed to cause the injuries, else liability does not arise. We believe that such is and ought to be the rule in this jurisdiction. Appellant vigorously urges us to reverse the commission and remand with directions to award benefits in this case. She declares that the concrete floor upon which the employee fell and the 12½ inch assembly line platform from which he fell each constitutes a special hazard and special risk within the rule. But numerous cases have held as a matter of law that a concrete floor is not such a hazard or special risk for the very simple reason that it is not peculiar to the employment, but is found on most sidewalks, streets and in the flooring of many public and private buildings. Does the 121/2 inch drop or step-off any more nearly meet the requirements? Probably it does come closer but again we think such a condition is regularly met by the public and is not generally regarded as a real risk or hazard. A substantially comparable step-off is found whenever we walk along a street curbing or step off the sidewalk to cross the street. And when we go down two or more concrete steps from our front door to the sidewalk, from a place of business to the street or down the steps of most courthouses, there is a potential possibility of a greater fall, and hence a greater hazard. Furthermore, we are not trier of the facts. If we were to reverse the commission here, we would be holding, as a matter of law, that a special hazard arising out of the employment not only existed, but caused at least a part of the injuries, and that reasonable minds could not fairly, justly and reasonably come to any other conclusion. We cannot and shall not so hold.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    In the Matter of the Adoption of J. M. K., Infant, by A. C. and A. C., Appellants, M. F., Respondent.
    No. 23574.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 21, 1962.

      Burrus & Burrus, Rufus Burrus, Independence, for appellants.
    Arthur T. Stephenson, Foust & Lyons, Kansas City, for respondent.
   CROSS, Judge.

This action was instituted under the provisions of the Missouri adoption statutes. The petition prays for an award of temporary custody of a minor child, and a final decree of its adoption in favor of petitioners A. C. and A. C., husband and wife, hereinafter designated as Mr. C. and Mrs. C. The child whose legal custody and adoption is sought by petitioners is a boy, J. M. K., born on December 1, 1955, out of wedlock, to M. N., whose name presently is M. F. The named mother opposes the purposes of the petition. There have been two hearings on the petition in the juvenile division of the circuit court and two appeals to this court.

At the first hearing, upon the conclusion of petitioners’ evidence, the child’s mother offered no evidence but filed a motion to dismiss the petition on the grounds that (1) petitioners’ evidence shows that custody was obtained contrary to the provisions of Section 453.110 V.A.M.S., and such section prohibits the court from vesting custody in them; (2) petitioners’ evidence shows they have violated the above statute and the court should not further encourage the unlawful act contrary to the equitable principle of clean hands. The trial court sustained the motion on the grounds alleged and entered an order dismissing the petition. From that order, petitioners prosecuted their first appeal to this court.

In determining the former appeal there was no evidence before us other than the undisputed testimony of petitioners — standing without explanation or contradiction by any evidence on behalf of the mother. From that evidence we concluded that the mother had transferred the child to petitioners in violation of Subsection 1 of Section 453.-110 V.A.M.S., and that thereby both the mother and petitioners had violated the statute. We held that in such a situation the trial court should not have dismissed the petition without a full inquiry into the question of the child’s custody from the standpoint of his best interests, but instead should have heard evidence on that issue and made an adjudication thereon. We deemed that procedure necessary in view of the following provision contained in Section 453.110: “If any such surrender or transfer is made without first obtaining such an order, such court shall have the right on petition of any * * * interested person * * * to inquire into the facts and to make such order as to the custody of such child as may be for the best interests thereof”. Accordingly, we reversed the judgment of dismissal and remanded the cause to the trial court to permit a full inquiry into the question of the child’s custody from the standpoint of his best interests.

In'accordance with the foregoing mandate, the circuit court has tried the cause on all issues raised by the petition. That court has fully heard the evidence of all the parties relevant to the proposed adoption and the welfare of the child. At the conclusion of the trial the court denied the petition for temporary custody of the child,, ordered that he be returned to the care and custody of his natural mother and dismissed the petition for adoption. Petitioners again'appeal from the trial court’s judgment.

Petitioners urge one broad assignment of error — that the court erred in dismissing the petition. In support of the assignment, petitioners argue that it was shown by the evidence: that petitioners had custody of the child and were proper parties to petition for adoption; that the mother’s consent to adoption was not necessary because she had “either willfully abandoned — or willfully neglected to provide him with proper care and maintenance”; that petitioners were suitable persons to adopt the child; that the mother had abandoned and failed to care for the child, was unable physically and financially to care for him, and was of such unstable emotional disposition as not to be a proper, person to have his custody; and that the best interest of the child would require that he be placed in petitioners’ custody. We consider that only two basic questions have been raised by petitioners: (1) Was there abandonment or neglect of the child by the mother as defined by the adoption statutes'? (2) What custody disposition is in the child’s best interest?

As appellants suggest, our review of this cause is governed by Civil Rule 73.01, V.A.M.R. Accordingly, we^shall review the case upon both the law and the evidence as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. As stated in In re Hyman’s Adoption, Mo.App., 297 S.W.2d 1, cited by appellants, “ * * * (the trial court’s) judgment will not. be set aside unless clearly erroneous and in conflict with the clear preponderance of the evidence disclosing manifest abuse of judicial discretion”. Similar admonition is expressed in Le Claire v. Le Claire, Mo.App., 352 S.W.2d 379, also a child custody case, in the following language: “ * * * in performing this duty (to review the whole record) we must bear in mind that the findings of the trial court should not be lightly disturbed. In fact, such findings will ordinarily be deferred to, unless from a consideration of all the facts and circumstances it appears that said., findings are in conflict with a clear preponderance of the evidence so as to disclose a manifest abuse of judicial discretion. (Citing cases)”.

But, say appellants, the trial court entered its judgment denying petitioners custody of the child and dismissing their petition without making any specific finding of facts. Therefore, appellants argue, since there is no finding of facts by the trial court, “this court has no benefit of such specific fact finding * .* * so there is no reason to defer to such a finding by this court * * * ”.- We do not agree with the proposition urged,-in view of the following provision containéd in Civil Rule 73.01: “All fact issues upon which no specific findings are made shall ’be deemed found in accordance with the result reached”.

This action was filed as a proceeding for adoption. In Missouri the right of adoption depends upon statute (except for the possibility of equitable adoption). Chapt. 453 V.A.M.S. In re Slaughter, Mo.App., 290 S.W.2d 408. The cited adoption 'chapter is considered to be a code within itself. In re Smith’s Adoption, Mo.App., 314 S.W.2d 464. No adoption may be - effected under the adoption statutes except through compliance with the terms of those enactments. State ex rel. M. L. H. v. Carroll, Mo.App., 343 S.W.2d 622; In re Slaughter, supra. As a matt'dr of simple justice the adoption statutes are to be strictly construed in favor of the natural parent In re Slaughter, supra. , .

Petitioners cannot secure a decree of adoption in -this case except by compliance with the provision of Section 453.030 V.A. M.S. requiring' written consent of the mother for such adoption, or by showing the existence of one of the four conditions named in Section 453.040 as exceptions to the requirement of written consent. There is no showing or claim on the part of petitioners that the mother has given such written consent. Petitioners do insist, however, that they have established the exception provided in Subsection 4 of Section 453.040 V.A.M.S., which reads as follows: “The consent of the adoption of a child is not required of * * * (4) A parent who has for á period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child' or willfully neglected to provide him with proper care and maintenance”. It is apparent that the issue of abandonment or neglect goes to the very heart of this case. Consequently, that issue is the first subject of our consideration. We here note the essential facts and circumstances shown in evidence relative to that question, particularly as they touch the central figures concerned — the mother and the child.

The woman who bore the child now sought by petitioners (sometimes referred to herein as M. F.), has suffered extraordinary misfortune and affliction from the time of her pregnancy. The pregnane)' itself resulted from her misplaced faith in the baby’s father. She named that man as H. A. K., district manager of a large and well known corporation. She met him while he was living in the same building where she had an apartment. Representing himself as a widower whose former wife, a T.W.A. hostess, had been killed in a plane crash, H. A. K. proposed marriage. The proposal was accepted and the engagement consummated.

Some time in 1955 after M. F. became pregnant, she was the victim of an automobile wreck while riding with H. A. K. She was thrown out of an open convertible and injured. She was hospitalized and operated on for a herniated disc. Right after the operation, H. A. K. came to the hospital and “told [her] the truth”. He stated that it was not true that his wife had been killed, but that she had divorced him. He told M. F. that he couldn’t marry her because he was Catholic and couldn’t remarry until his wife was dead. He proposed to place her in a Catholic home to have her baby and that the institution take the child for some disposition when it was born. He then “took a plane and left for St. Louis”.

She left the hospital in a distraught and despondent condition. She was returned to the hospital within a short time thereafter because she had taken an overdose of codeine — “sleeping pills” — prescribed by her doctor with instructions for her to continue taking them for relief from her back condition. Petitioners insinuate and insist that the incident was an attempt at suicide. According to M. F.’s testimony the occurrence was accidental. It was she herself who discovered that she was in need of medical attention. She stated, “I started feeling- funny. I went down and told Mrs. Switzer (her landlady). I told her I had taken too many pills”. “I only know I took one or two too many so I had to get some help”. “I don’t believe I did it purposely. I was worn out and trying to figure things out * * *. They took me in and got those sleeping pills out of my stomach and sent me home”.

At the appropriate time she returned to the hospital to have her baby. He was born, as stated above, on December 1, 1955. Three days after his birth she developed rheumatoid arthritis. It started first in her fingers, extended to her hands, then up into her shoulders and neck. Her condition gradually worsened and persisted throughout the time she cared for the child — almost three years. Although it was necessary to bind up both wrists and both hands, and she could not lift her baby except with the inner part of her forearms, she continued to care for and tend him. She said, “Yes, I couldn’t sleep more than two or three hours at a time or I’d stiffen up and not be able to take care of him, so I didn’t sleep very much”. She continued to receive treatment from the doctor in the form of “gold shots and steroids”.

The hapless woman suffered still more injuries from a second automobile wreck. Some time after the child was born, she decided to go to Des Moines and talk to the parents of H. A. K., the father. For that purpose she secured transportation by motor car. On the interrupted trip, the car driver missed a curve and went off the road. M. F. received serious hurts that included “a smashed right hand”, a crushed pelvis and disfiguring facial injuries. She was in the hospital three and a half months and underwent three plastic surgery operations on her face. She recovered no damages on account of these injuries.

Despite her injuries and disabling sickness, her inability to work for substantial periods of time, the scarcity of money, and the difficulties she encountered in finding suitable nursing and custodial care, together with the anxiety necessarily arising from those conditions — the mother managed to keep and provide for her child for two years and ten months. Part of that time was spent in the homes of her father, her mother and other relatives. At such times as she was able to work she did so, principally as chief switchboard operator at the University of Kansas City. When she worked, she secured nursing care for the child at various nurseries and foster homes, for which she paid $15.00 per week, and from her mother.

During August and September of 1958, M. F. was living in an apartment with her mother, together with her child. She was employed at the University of Kansas City in the position above noted. ,The grandmother cared for the child in his mother’s absence. That arrangement continued until the grandmother developed a nervous condition, became ill and could no longer help with the child’s care. She needed rest and relaxation to recover her health. M. F.' had been advised by her doctor that she should not try to work and take care of her child at the same time. Her health, already poor, had been adversely affected by the then recent death of her father. Under those circumstances M. F. began to look for a family that could properly give her son custodial care. '

Through intermediacy of an aunt who knew of her plans, M. F. established contact with petitioners. After sevérál conferences with them, she relinquished the child into their hands on September 27, 1958. There is sharp conflict in the evidence as to the purpose of the child’s delivery to petitioners and the intentions of the parties to that transaction. Petitioners’ evidence tends to show that the mother left the child with them permanently, intending his adoption by them. Both petitioners testified to the effect that the mother said she knew they were taking him for that purpose, that she knew what she was doing, and that she wanted what was best for her child. Petitioners deny that she offered to pay them money for keeping the child, or that there was any discussion of that nature.

The mother denied that there was any discussion about adoption and denied that she had made any agreement that petitioners could adopt her son. She testified that she told petitioners she was ill, had arthritis, couldn’t take care of her child, and that she wanted to board him in good hands where he would be given good care, and offered to pay them $15.00 a week for his room and board, the same she had paid on former occasions; that -petitioners said they didn’t want any money, but that they would take care of the child as long as she didn’t come around and bother them and upset him. It was her understanding “that they would ■ in effect, board the child”. They didn’t want M. F. to call on the telephone. Mrs. C. said she would call M. F. when the child was asleep. She didn’t want him to hear her talking.

For a few weeks after petitioners took the child, Mrs. C. made frequent calls to the mother on the .telephone, and would ask her to sign adoption papers. M. F. testified she. kept telling Mrs. C. she would not consent tp adoption but would sign papers that would permit petitioners to have the child if anything happened to her (M. F.). Mrs. C. also called M. F. to inquire about the child’s polio shots, vaccinations, and other medical data. The last of such calls was in November, 1958.

As M. F. had promised, she made no telephone calls to petitioners and did not come to their home. She did not see her son again until January 5, 1960, but kept in touch with his condition and progress through her aunt who was a friend of petitioners.

On the last named date, Mrs. C. called M. F. stating that she wanted to come to M. F’s. apartment and talk to her. M. F. refused to talk to Mrs. C. unless she was permitted to come to petitioners’ home. Mrs. C. agreed to that arrangement but insisted that M. F. come as “a friend of theirs” — not as the child’s mother. The “conversation” at petitioners’ home was another request by them that M.-F. sign-adoption papers and a refusal by her to do-: so. She testified, “I told them that I wasn’t going to adopt Mike and I never would adopt Mike; that I never would sign any papers. And again, I offered them board. * * * Then she ordered me out of the house”. Some time later an attorney, acting for petitioners, visited M. F. and requested her to sign a consent for adoption. Again she refused to sign the paper.

In May, 1960, the mother returned to the home of petitioners and told them she had come to take her child. Mr. C. shut the door in her face and pulled the curtains so she could not see the boy. A few days later petitioners filed this suit for adoption.

We have come to the specific question: Has the mother either “willfully abandoned the child” or “willfully neglected to provide him with proper care and maintenance” within the legal meaning of the quoted-words as construed by the courts?

In the case, In re Watson’s Adoption, 238 Mo.App. 1104, 195 S.W.2d 331, the court considered and defined the meaning of “willful abandonment” (as used in . the’' adoption statutes) as follows:

“The statute does not define the term ‘abandon,’ no-r are there any decisions of this state to be found where a definition of it is given. Webster’s New International Dictionary (2nd Ed.), Unabridged, defines ‘abandon’ as: ‘To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to desert, as a person to whom one owes a duty, allegiance, or the like.’
“A wilful abandonment then would seem to imply, first, a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or, second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection”.

In the Watson case the court applied the foregoing interpretation to the facts there in evidence and held that there had been no willful abandonment or neglect of a child by its mother. The court said:

“Does her conduct at the time she delivered the child to petitioners, and subseqúént'thereto, amount to an abandonment under the second section of our definition of a wilful abandonment ? In our opinion it does not. Respondent was destitute and unable to provide for the child. Instead of deserting the child, she arranged for its temporary care. Therefore, she did not withhold her presence from the child, or fail to bestow upon it her love and care without just cause or excuse. She was prompted by the highest motives. She was securing its welfare, rather than abandoning it.
“Was there neglect on the part of respondent to provide proper care and maintenance for the two years last preceding the date of the filing of the petitioner? Clearly not. * * * there was no showing of any neglect at all”.

In the case, In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686, a natural father actually did not provide for his child’s support and maintenance for two years before the filing of a petition for adoption. In holding that such failure on the part of the father was not “willful”, within the meaning and contemplation of the adoption statutes, the court said:

“ * * * the parent’s consent to the adoption is not to be dispensed with upon the ground of his neglect of his child unless it is shown that such neglect was intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego his parental duties over the period of time which the statute prescribes. It is inconceivable that the Legislature would have had anything less in mind with respect to a matter of such serious consequences, and certainly nothing less would warrant the state in assuming to sever the natural relationship which exists between a parent arid his. child”.

In Cox v. Carapella, Mo.App., 246 S.W.2d 513, a proceeding in habeas- corpus, a .natural mother sought to regain custody of her child from the possession ofi-other persons to whom she had relinquished it when she was in financial straits and other circumstances of desperation. Those persons charged the mother with having willfully abandoned and neglected:-.her child. In ruling against that contention the. court said:

“We find no wilful abandonment or wilful neglect to provide care and maintenance. While it is true that petitioner left Pamela Sue with respondents shortly after the birth of the child, this was scarcely abandonment in view of the pitiful plight in which petitioner then found herself, estranged as she was from her husband, in desperate financial straits, in a city far distant from her home, under circumstances where her great-aunt was encouraging her and her mother was acquiescing in the plan to leave the child with the Carapellas. * * *
“There was no ‘failure to support’. Petitioner testified that she had offered to pay the Carapellas money to support the child but that Mrs. Carapella ‘refused to take any’, saying that she ‘did not need any help for the child’ ”.

The evidence here does not warrant our finding that the mother voluntarily and intentionally relinquished her child’s custody to petitioners with the intent to never again claim the rights of a parent or perform the duties of a parent. We are unwilling to say that she intentionally, and without just cause or excuse, withheld from the child her presence, care, love, protection, maintenance and filial’ affection.

On the, contrary, it is evident that .the mother’s relinquishment of her child was not the result of. a voluntary choice, or a settled purpose to forego her parental duties, but that it was suffered through necessity and.circumstances beyond her control. Despite injury, illness and penury, she had kept and' cared for the child for almost three years. • Only because she was visited with additional distress did she turn to petitioners, seeking from them the care for her child she could no longer afford. As the court said in the Watson case, “ * * * Instead of deserting the child, she arranged for its temporary care. Therefore, she did .not withhold her presence from the child, or •fail to bestow upon it her love and care -without just cause or excuse. She was prompted by the.highest motives. She was •securing its. welfare, rather than abandoning it’\ The fact that the child’s mother consistently refused to give her consent to his adoption is a strong circumstance indicating there was no relinquishment of her child’s custody “with the intent to never again claim the rights of a parent”. The reasonable inference to be drawn from her ■refusal of adoption consent, under all the circumstances shown in evidence, is that she intended to resume the actual care of the child when she was physically and financially able.

Nor is it shown that there was any neglect of .the child — willful or otherwise. The very act of placing him with petitioners was the. procuration of his necessary care and maintenance. There was no refusal by the mother to provide for the child’s care and keep. On the contrary, according to her testimony (which we deem the trial court considered credible) she twice offered tó pay petitioners $15.00 per week — the sum she had paid other persons for the child’s room and board. As the court said in Cox v. Carapella-, supra, where similar circumstances-.were shown in evidence, “There was no ‘failure to support’. Petitioner (the mother) testified that she had offered to pay the Carapellas money to support the child but that Mrs. Carapella ‘refused to take any’, saying that she ‘did not need any help for the child’ ”. Even in In re Perkins, supra, where the father admittedly provided no support or maintenance for over two years, the court declined to say that he had willfully neglected his parental duties in that respect, in view of his expressed willingness to contribute to the child’s maintenance.

Deferring to the findings of the trial judge, particularly in matters involving credibility of the witnesses, we separately find that the natural mother of the child lawfully relinquished him to petitioners only for the purpose of securing his temporary care and that in doing so she retained the right to supervise his care and to resume his custody; that she did not unlawfully surrender or transfer permanent custody of the child to petitioners; and, that she did not willfully abandon him or neglect to provide him with proper care and maintenance, within the meaning of Section 453.040 V.A.M.S.

In view of these findings, the question of the child’s custody disposition from the standpoint of his best interests passes out of this appeal as an issue for our determination. Under the evidence now before us, we regard this case as a conventional proceeding for adoption — unaffected by Section 453.110, — one in which the court has no statutory authority either to award temporary legal custody of the child to petitioners as a condition precedent to adoption, or to decree the child’s adoption in them, over the mother’s objections, in the absence of her written consent or a showing of a condition defined by the statute as a legal substitute therefor (in this instance, abandonment or neglect). Hartwig v. Hartwig, Mo.App., 333 S.W.2d 101. “Adoption is purely a creature of statute and even ‘the best interests of the child’ cannot give the court jurisdiction where it has none’. Mo. Law Review, Vol. 27, No. 3, p. 405. “Questions in regard to the fitness of the petitioners and the welfare of the child are not reached if abandonment is not proved”. 2 Am.Jur.2d, Adoption, Section 60, p. 910.

Our reasons for rejecting the applicability of Section 453.110 are apparent from our specific findings. It is our interpretation of that statute that it grants the court no authority “on petition of any * * * interested person * * * to inquire into the facts and to make such order as to the custody of such child as may be for the best interests thereof” except in the case of an unlawful surrender or transfer of the custody of a minor child as defined in Subsection 1. The placing of a child in a family home by a parent with retention of the right to supervise the child’s care and to resume its custody is specifically declared, by Subsection 2, to be an unprohibited act— hence, lawful. There would be no reason, and there is no statutory authority to “inquire into” the lawful act of placing a child for care in a family home. The placement of the child in this case is of the nature defined and specifically permitted by Subsection 2. Therefore, the mother’s lawful placement of the child in the home of petitioners has not had the effect of enlarging the court’s jurisdiction to inquire into the child’s best interests under the provisions of Section 453.110. This action still remains an adoption proceeding — not a “welfare” case.

Any seeming disparity between our former opinion and the present one is accounted for by the fact that our decision in the first appeal was based on ex parte evidence — on testimony solely given by petitioners. No evidence whatsoever on behalf of the mother was then before us. Our decision in this, the second appeal, is not based on that record. Instead, it rests on the evidence now before us. The nature of the present record is materially different from that of the former in that it contains full and complete evidence on all issues in the case, including the evidence on behalf of the mother.

No error or abuse of discretion on the part of the trial judge has been demonstrated by this appeal. Consequently, the judgment ordering the child returned to his mother and dismissing the petition for adoption should be affirmed. It is so ordered.

All concur.

      . In re Adoption of K., Mo.App., 347 S.W.2d 239.


author: McDowell, judge.

text:
    Charles HOLLAND, Plaintiff-Respondent, v. Hoyt C. LESTER, Defendant-Appellant.
    No. 8146.
    Springfield Court of Appeals. Missouri.
    Dec. 5, 1962.
    Motion for Rehearing Overruled Dec. 31, 1962.

      Blanton & Blanton, David E. Blanton, Sikeston, for appellant.
    Sharp & Hatley, Charles C. Hatley, New Madrid, for respondent.
   McDowell, judge.

This appeal is by defendant, Hoyt C. Lester, from a verdict and judgment of $2,000 in favor of plaintiff, Charles Holland, for personal injuries sustained when defendant’s truck collided with, and ran over plaintiff, on Missouri State Highway 162 in New Madrid County, Missouri.

Plaintiff’s petition was based upon both primary and humanitarian negligence on the part of defendant but was. submitted to the jury only on the theory of humanitarian negligence.

Defendant’s answer was a general denial and a plea of contributory negligence.

The cause was submitted to the jury on plaintiff’s evidence. Defendant, at the close of plaintiff’s case and at the close of all of the evidence, offered a motion for directed verdict and stood on the same, offering no evidence. The verdict was a ten-man verdict. Defendant filed an after-trial motion for judgment in keeping with his motion for directed verdict which was by the court overruled, resulting in this appeal.

There are two issues raised on this appeal. First, that plaintiff’s petition failed to state a cause of action based on humanitarian negligence.

Second, that the evidence offered by plaintiff failed to sustain the burden of proof of the essential elements of humanitarian negligence and the court erred in submitting the case to the jury on that theory.

We will state the evidence offered by plaintiff which is most favorable to him. On September 8, 1961, plaintiff left his place of employment at an Arnold, Missouri, filling station, after work hours, and started to Gideon to pick up his wife. He had car trouble, left his automobile at St. Genevieve and caught a bus for Portage-ville, where he arrived early in the morning on September 9th, got off the bus and started walking from Portageville to Gideon. He testified he walked down through the town of Portageville and got on Missouri State Highway 162. He was dressed in a pair of tan pants and a light blue shirt. Plaintiff testified that he stopped at the corner of the intersection of said highway and a north and south road, which was located on the west side of Portage-ville, and smoked a cigarette while he was waiting for a car coming from the west to pass. He testified he started walking in a westerly direction on the north side of Highway 162 toward Gideon and that, as he was approaching a house on the north side of said highway, he heard some dogs barking which he knew to be mean; that he started to cross the road to the south side when he blacked out or fell asleep; that he did not know whether he got across the road or where he was. He said the next thing he remembered was that he came to under the defendant’s pickup truck, south of the white line. The evidence is undisputed that plaintiff’s body was just south of the white line in the center of the road, his head toward the west and his feet to the east. Plaintiff’s evidence is that he had no knowledge whatsoever as to how defendant’s truck got straddle of him in the center of the road. He testified that his body from his chest back was under the truck. There was other evidence on the part of plaintiff that his head was just sticking out from under the hood at the front end of the truck. The evidence is that plaintiff hollered for them to get him out from under the truck or jack up the truck; that defendant and a lady by the name of Hatfield were in the truck at the time of accident and that John Via and Judge Wright were in a station wagon which they parked some 30 or 40 feet on the north side of the road from where the accident occurred with about a third .of their car on the pavement; that Via got in the truck and backed it off of plaintiff and that Mrs. Hatfield and defendant got him up, put him in the truck and took him to his mother-in-law’s home in Gideon; that defendant got an ambulance and helped put plaintiff in the same and he was taken to the hospital at Kennett. That defendant took plaintiff’s mother-in-law and a small girl to the hospital so they could be with plaintiff.

Shortly after plaintiff was removed to the hospital, he told a Missouri Highway Trooper that he started across the road, saw car lights coming from the west toward him; that he didn’t know what happened to that car, whether it got him or not, and that he next remembered waking up or coming to under defendant’s pickup truck, which had stopped straddle of him. He stated he was under the front end of the truck and it had to be backed off of him; that the wheels of the truck had not run over him. It was about an hour and forty-five minutes from the time he got off the bus.

The evidence is that the defendant, accompanied by one, Marjorie Hatfield, a young, estranged, married matron, had engaged in a nighttime of extracurricular activities. During the evetide and the night that followed, the defendant, accompanied by his guest, had something to drink at Gibbs Bar in Gideon before going to Wardell where, at a bar, he had about three beers and, later in Caruthersville at the “Climax”, he had some kind of little drink in a glass — “maybe two, three or four, or something like that”, but had nothing to drink after 10:00 o’clock P.M. Later, they went to a room. Early the next morning defendant, with his guest, started to return from Caruthersville to Gideon via Portageville. After he left Portageville, going west on Highway 162, he was following a station wagon. The lights on his pickup truck at the time were on dim and the lights on the station wagon were on high beam. The evidence is that as the station wagon turned west from the intersection of Highway 162 and a road running north and south' at the west side of Portageville, the driver observed an object in the road in front of him but could not determine what it was. As he approached, in about 200 feet of the object, he observed it was a man lying on the south traffic lane just south of the white line in the road. The driver started to stop but, because the road at the place where plaintiff’s body was lying was so narrow, he stopped 30 or 40 feet west beyond where plaintiff was lying and parked his station wagon on the north side of the road leaving about one-third of it on the pavement.

The defendant slowed down before he got to-the-station wagon, then speeded up to about 50 miles per hour to pass and gradually swung over to the south side of the road-and came to a stop, straddling plaintiff who was, at the time, lying in the middle of the road. ■

John Via testified that when he saw that the object in the road was a man he looked back to see the lights of defendant’s car to see whether he was going to run over him. He stated he did not know how far defendant’s car was from plaintiff at the time he turned to the south to pass; that the accident occurred about 4:10 A.M., and it was still dark.

The evidence is undisputed that the wheels of defendant’s truck did not run over plaintiff; that as the front of the truck was going over plaintiff, Mrs. Hatfield saw plaintiff and screamed. The defendant applied the brakes. Mrs. Hatfield did not know whether it was before or after she screamed that defendant asked “What was that?” and she said, “It’s a man.” She testified that the defendant was not intoxicated at the time of the accident. The plaintiff’s wife, who talked to the defendant after the accident, and her mother, who rode with defendant in the pickup truck from Gideon to Kennett, testified that they smelled alcohol on defendant but admitted that defendant had no difficulty in driving the truck.

The Trooper talked to the defendant at 5:50 A.M., on the day of the accident and testified that he did not appear to be under the influence of intoxicants. Defendant did not take the stand and no evidence was offered on his behalf. There was no evidence offered as to the width of the road at the place of accident. There was evidence by John Via that they had to drive past the body to find a place wide enough to park; that the road at the place of accident was very narrow. The Trooper testified that he did not measure the road at the place of accident as to width; that he thought there was a shoulder on the road about two feet wide and ditches on each side about two feet deep. However, his report showed there were no shoulders on the road at the place of accident.

The plaintiff testified that he had walked about 200 to 300 feet west from the corner where he entered Highway 162 to where he started to cross the road and had his blackout.

In our opinion we will refer to appellant as defendant and to respondent as plaintiff, the position occupied by the parties in the lower court.

It is defendant’s first contention that the amended petition did not contain all of the essential elements of a charge of humanitarian negligence in that it was not alleged that the defendant could not have avoided collision between the defendant’s pickup truck and the plaintiff, who was lying on the traveled portion of the road, with safety to himself and his passengers. That the trial court erred in not sustaining defendant’s motion for directed verdict because the petition failed to state a cause of action.

We find there is no merit to this contention. This point was decided by the Supreme Court, en banc, in Fenneren v. Smith, Mo., 316 S.W.2d 602, 605 [1, 2], This very contention was before the Supreme Court and the court stated:

“Before approaching the review of plaintiff-respondent’s contentions, we shall consider the contention of defendants-appellants that plaintiff’s petition was insufficient in stating a claim of negligence under the humanitarian rule. Plaintiff had alleged that, although ‘the defendants saw or in the exercise of the highest degree of care, should have seen the automobile the plaintiff was driving “ ‘in a position of imminent peril and danger of being struck by the truck, in time thereafter to have by the exercise of the highest degree of care on the part of the defendants, stopped the said truck, or swerved the same aside, or diverted the course thereof, or to have given a signal of warning nevertheless, defendants neglected and failed to do any of said acts so as to prevent the collision.’

“It is noted the averment does not include an allegation to the effect that, after they knew or should have known plaintiff was in a position of imminent peril, defendants had the present ability with the means at hand to have averted the impending injury ‘without injury to himself or others’ Defendants-appellants particularly complain of plaintiff’s failure to plead the quoted italicized phrase. See constitutive fact ‘(3)’ of a claim under the humanitarian rule as set forth in Banks v. Morris & Co., 302 Mo. 254, at page 267, 257 S.W. 482, at page 484. The petition properly should have more definitely averred facts equivalent to constitutive fact ‘(3)’, including the phrase ‘without injury to himself or others,’ but we think the petition should not be held bad because of the omission. Liberally construed, we think that by fair intendment the quoted averment included the essential elements of a claim under the humanitarian rule, and we have no doubt defendants knew plaintiff was intending to state facts calling for the application of the rule. (This is not to say it is unnecessary to hypothesize and submit, in effect, the constitutive facts, or facts essential to a plaintiff’s recovery under the rule, including the fact of a defendant’s present ability, with the means at hand to have averted the impending injury without injury to himself or others, except in a case where there is no substantial evidence that defendant in acting to avert the impending injury would have endangered the safety of himself or others, there is no error in omitting the phrase we have italicized. Eller v. Crowell, Mo.Sup., 238 S.W.2d 310, and cases therein cited.)”

In the instant case the petition failed to put in the words “without injury to himself or others”. The Supreme Court, in the above case, on this question definitely holds that a petition under the humanitarian negligence rule does state a cause of action without this allegation.

In submitting the case to the jury by the giving of instruction No. 1, 'the court' did hypothesize all the facts necessary to constitute humanitarian negligence. We find against defendant on this alleged error.

Defendant’s second alleged error is that the evidence offered by the plaintiff and the permissible inferences therefrom, considered in the light most favorable to plaintiff, did not support the submission of the case to the jury on the ground of humanitarian negligence and that the court erred in refusing defendant’s after-trial motion for judgment in accordance with his motion for judgment made .at the close of all of the evidence.

We agree with defendant’s contention that where defendant’s petition alleged both primary negligence and humanitarian negligence and the cause was submitted solely on the humanitarian doctrine, plaintiff abandoned the pleaded primary negligence and the trial court’s inquiry on defendant’s after-trial motion for directed verdict was whether plaintiff made a sub-missible case on his only submitted assignment and the inquiry on appeal should be ⅞0 limited. Section 510.290 RSMo 1959, V. A.M.S.; Farmer v. Taylor, Mo.App., 301 S.W.2d 429, 434 [9].

Our review of the submissibility of plaintiff’s case is on the theory upon which plaintiff grounded his recovery. We review .the evidence in the light most favorable to plaintiff, give plaintiff the benefit of all favorable inferences arising therefrom and disregard defendant’s evidence unless it aids plaintiff’s case. But the favorable consideration of the evidence rule calls for a consideration of all the facts shown by plaintiff, not merely part of them isolated from the rest; and it does not require courts to supply missing evidence or disregard the dictates of common reason and accept as true that which obviously, under all of the record, is not true or to give plaintiff the benefit of any other than reasonable inferences. Kirks v. Waller, Mo., 341 S.W.2d 860, 863 [2, 3] (and the numerous authorities cited therein); Cooper v. Burnley, Mo., 345 S.W.2d 74, 77 [1]; Davis v. Quality Oil Company, Mo., 353 S.W.2d 670, 671 [1]; Allen v. Hayen, Mo., 320 S.W.2d 441.

In a humanitarian case, as in other actions, the burden is on the plaintiff to establish by substantial evidence of probative value or by the reasonable inferences therefrom, every essential element of his theory of submission. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 787. The plaintiff must present such evidence from which a jury may reasonably find where the plaintiff did in fact come into a position of imminent peril. “Evidence that is merely speculative, a guess or conjecture is not sufficient for a jury to find where the position of imminent peril began.” Paydon v. Globus, Mo., 262 S.W.2d 601, 603; Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109 [6,7].

In the instant case the cause was submitted on humanitarian negligence that: “Defendant saw, or in the exercise of the highest degree of care should have seen plaintiff in. a position of imminent peril and danger in time thereafter with the means at hand to have stopped, slackened or slackened and swerved said vehicle and thereby avoided striking and injuring plaintiff.” So, the question presented for determination under this issue is whether there was substantial evidence to support this charge of negligence.

We stated in Glenn v. Offutt, Mo.App., 309 S.W.2d 366, 369 [5,6] that: “An essential element of a cause of action under the humanitarian doctrine is that, after (either actual or, in a discoverable peril case, constructive) notice of plaintiff’s position of imminent peril, defendant must have had the present ability with the means at hand to have averted the threatened harm without injury to himself or others [West v. St. Louis-San Francisco Railway Co., Mo., 295 S.W.2d 48, 52(5), and cases there cited]; and, since the humanitarian doctrine blots out all antecedent or primary negligence and seizes upon the situation as it exists when imminent peril comes into being [Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, 779(10); Johnson v. St. Louis Public Service Co., 363 Mo. 380, 251 S.W.2d 70, 75(6)], the ability of defendant thereafter to have averted the impending accident must be determined on the basis of the factual situation existing, and the means and appliances available, at the instant imminent peril arose.” Kelly v. Lahey, Mo.App., 232 S.W.2d 177, 179.

In the instant case the evidence is that defendant was driving west in his pickup truck with his lights dim following a station wagon going in the same direction with its lights on high beam. The station wagon was being driven by one, Judge Wright, and riding with him in the front seat was witness Via. There is some discrepancy in plaintiff’s testimony as to how far west on Highway 162 plaintiff was lying in the road just south of the white line. Plaintiff testified as he left the intersection of the highways, at the edge of the city of Port-ageville, he had gone west on the north side of Highway 162, 200 to 300 feet. There was evidence that plaintiff’s body was some 20 feet east of highway signs on said highway, which signs were about 300 yards from the intersection of the roads. The evidence is undisputed that plaintiff’s body was in the traveled part of the highway in the south lane of traffic as the traffic goes west and one of plaintiff’s witnesses stated that you could see a part of the white line between the body of plaintiff and the center of the road.

Plaintiff testified that he had blacked out or fallen asleep on the road and he knew nothing of the facts except that when he regained consciousness he was underneath defendant’s truck. Mrs. Hatfield testified for plaintiff that defendant was going west in the north lane of traffic, following the station wagon; - that the station wagon slowed down and defendant speeded up to pass and that, as he turned into the south lane of traffic, she saw plaintiff in the road just as the car started over him. She testified that defendant was driving about 50 m. p. h. when he started to turn into the south lane to pass the station wagon, which was slowing down; that defendant put on his brakes and stopped astraddle of plaintiff’s body and asked her what was in the road. A patrolman testified for plaintiff that he did not know how wide the highway was at the place of the accident. He stated, in his report, that there were no shoulders on the road but testified he thought there were shoulders about two feet wide and a ditch on the south side of the road about two feet deep.

Via, a passenger in the station wagon, testified that when they started west on Highway 162, they saw an object in the road but could not tell what it was until they got to within about 200 feet when they discovered it was a man. He stated they started slowing down and the driver of the car, in which he was riding, started turning to the right; that because of the narrow road at the place where plaintiff’s body was, they had to drive past him about 30 to 40 feet when their car stopped on the north side of the road with the car about one-third on the pavement. He was asked how far defendant’s truck was from the place where plaintiff was lying on the road when he started to turn into the south lane and stated that he could not tell.

Under plaintiff’s evidence we must hold that plaintiff failed to make a submis-sible humanitarian negligence case. In the first place, there was evidence that defendant’s truck, at the time he started to turn into the south lane, was traveling at a speed of about 50 miles per hour. There was no evidence as to the condition of the road, the width of the road, or as to the distance in which defendant’s truck could be stopped prior to the accident. The record is devoid of any evidence from which the jury could determine at what point defendant could by the exercise of the highest degree of care have discovered plaintiff in a position of imminent peril. It does show that defendant’s truck was traveling with the lights on dim but it does not show in what condition the brakes were on defendant’s truck nor how close the truck was when defendant could have discovered the imminent peril of plaintiff or the distance within which he could have stopped his truck or the relative position of the truck and plaintiff at the moment when defendant could first be charged with actual or constructive notice of plaintiff’s perilous position.

One of the essential elements of the humanitarian rule is that defendant, after receiving such notice (of a person in a position of imminent peril), had the present ability with the means at hand, to have averted the impending injury without injury to himself or others. There is a total failure of proof as to this element.

We think that from the evidence offered plaintiff could not have been in a position of imminent peril as long as defendant’s truck stayed in the north lane of traffic. For if he had stayed in the north lane of traffic the accident could not have happened so the point of discovery of imminent peril on the part of defendant had to be when he started to turn into the south lane of traffic to pass the station wagon in front of him and the evidence is wholly devoid as to where that point was. In fact, we think the only reasonable inference that could be drawn was that defendant’s truck must have been in such close proximity to plaintiff’s body there on the highway that it could not have been stopped, slackened or slackened and swerved in time to have avoided hitting plaintiff. It will be noted that plaintiff’s body was right along the center line, according to plaintiff’s testimony, and the truck straddled his body. Neither of the wheels struck plaintiff. Therefore, defendant’s truck must have been astraddle the white line. See Branscum v. Glaser, Mo., 234 S.W.2d 626, 628 [4-6] and cases cited therein; Glenn v. Offutt, supra, 309 S.W.2d p. 369 [7, 8].

We agree with the contention of defendant that the only way a jury could have found for plaintiff was by guess, speculation, and conjecture.

The cause reversed and remanded with directions that the judgment in favor of plaintiff be set aside and judgment entered for the defendant.

RUARK, P. J., and STONE, J., concur.