author: RUARK, Presiding Judge.

text:
    Ernest PADGETT, Plaintiff-Respondent, v. Barnett BREZNER, Defendant-Appellant.
    No. 8035.
    Springfield Court of Appeals. Missouri.
    Aug. 11, 1962.

      Donnelly & Donnelly, David Donnelly, Robert T. Donnelly, and Wendell L. Evans, Jr., Lebanon, for defendant-appellant.
    Orville C. Winchell, Lebanon, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment for plaintiff on a suit wherein the plaintiff claimed a “bonus” under a construction employment contract. A rather lengthy statement of the facts is necessary to a full understanding of the issues involved.

The petition alleged that plaintiff is a resident of Lebanon, Missouri, and defendant is a nonresident. Plaintiff and defendant entered into a contract whereby plaintiff was to perform “certain services” for the defendant, who was a general contractor, at Fort Leonard Wood, Missouri. After the parties entered into contract, plaintiff was given authority to go over certain items of cost in a construction job and plaintiff was to receive a 10% bonus on any items which were reduced in cost through efficiency and handling efforts on his part. There was “one item” for road construction at a cost of $152,000 which was reduced to $105,000 at the special instance and efforts of the plaintiff, thereby effecting a savings to defendant in the sum of $47,000. “That defendant was to receive 10% of this amount, thus a net savings of $42,300.00 was saved of said hid and thereafter plaintiff was to receive 10% of this net amount” of $42,230. The sum of $1,600 was paid on the 9th day of November, 1960, and demand was made on defendant for the balance' of $2,630, but he refused to pay. Plaintiff received a letter from defendant discharging him from all further services and his employment was terminated.

This petition was filed November 28, 1960. Accompanying it was an affidavit for attachment.

The amended answer is in effect a general denial. Concurrently defendant filed his counterclaim wherein he alleged that in October 1959 he employed plaintiff as his project manager on a contract for construction of off-site facilities pertaining to a housing project at Fort Wood and that he discharged plaintiff on November 9, 1960. Plaintiff’s duties as project manager were to have control of the project, to keep accurate account of the business and affairs of the defendant, and otherwise to protect his interest on such job. During that employment plaintiff converted to his own use sums of money of the defendant and fraudulently caused the books and accounts to be kept in a fraudulent manner for the purpose of concealing his acts. The prayer was for $2,428.95. Plaintiff’s reply denies all facts except his employment as project manager and his discharge on November 9, 1960. Trial was held in Laclede County on May 26, 1961.

Defendant Brezner is a general contractor with offices at Alexandria, Louisiana. He had bid in and been awarded a contract for work on an off-site construction project to be completed at Fort Leonard Wood in Missouri. In July 1959 plaintiff met the defendant in Alexandria, and the result of this meeting was that defendant employed plaintiff as project manager on the Fort Wood project. His salary was to be $150 per week, plus $50 per week living expense, plus $50 per month allowance for use of personal car, plus fuel for his car when used for business purposes. Plaintiff says he told Brezner he was not interested in a straight salary deal and asked Brezner if there would be a chance of making a commission on the job and “his answer to this question was that he had bid the job very low and that he subcontracted [some parts ?] of the work * * * but there were other items that he had not subcontracted which included the roads, streets, sidewalks, clearing, and grubbing, and that had not been subcontracted and that if I came to Fort Wood for him and could save some money on these he would give me a cost breakdown of how he had bid the job and if I could save some money on this job that he would pay a commission for me to accept.” He said that on August 3 he drove up and told Brezner he was going to take the job.

“Q. Now, from your understanding when is a commission like that payable —when were you to receive that money?
“A. Oh, the agreement was that I would receive the money when the job was completed.”

Brezner gave him the plans and specifications on the job and said, “Take these home and study them and look them over,” and told him (plaintiff) he would get a work order to report to Fort Wood in a few days. He went on the payroll September 17, 1959, and on September 22 went to work at Fort Wood as project manager. That was the agreement which is the basis of the plaintiff’s case.

The defendant denies there was any agreement for bonus or commission. He says it was never discussed and that he never heard of it until the lawsuit was filed. The verdict, however, having been for plaintiff on his claim, we must assume that the conversation above-mentioned took place.

After plaintiff got on the job as project manager an office was set up near the site and the records of the construction project were there. An account was opened in the Waynesville Bank, and plaintiff as project manager had authority to and did check on such account for payroll and project expense, including his own salary and allowances.

Then plaintiff began looking for a subcontractor. One Mace heard about it and got in contact with plaintiff. Plaintiff took Mace over the project. Mace looked at the specifications, and the upshot of this was that Mace made a bid of $109,000 on a subcontract for performing three items, viz., grubbing, or site clearance, grading, and surfacing of certain roads. Plaintiff did not make the deal with Mace. He called Brez-ner, and Brezner came up to Fort Wood. Plaintiff introduced Mace to Brezner, and Brezner and Mace had a conversation wherein Mace agreed to reduce his bid for performing the three items to $105,000, and the subcontract was let to him for those particular items. It is the “savings” on the subcontract for these three items for which plaintiff claims a bonus or commission, because, as we understand his testimony, he had brought Mace and Brezner together.

Roscoe Mace, called as a witness for plaintiff, verified the fact that he was a contractor. In 1959 he was doing construction work at the camp for another contractor. He had a discussion with plaintiff, went over the plans, looked at the job site, and prepared bids for two parts of the construction work (one was not accepted). He went to the Engineering Corps and got some estimations of quantity and then in his own office prepared his bid of $109,000. There was no specific price discussed with plaintiff. No one had any influence on him in fixing the amount of his bid. He based it on blueprints, exhibits, and quantities. There were other bidders for the project and bidding was on a competitive basis. No one told him what to bid. After he met Brezner he reduced his bid to $105,000 and entered into a contract with Brezner. He identified his final bid and contract thereon but stated, “This was the final contract agreement, but this here amount is not the right amount of the contract at present because there was some deletion.” The figure of $105,000 was the agreed figure at the start. The Army engineers made some changes and deleted a portion of the improvement and this changed the dollar volume, which was taken off his contract and off Brezner’s.

Somewhere the job got behind schedule, and it was still behind schedule at the time plaintiff was discharged. Plaintiff agrees to that. He said, “Well, we had a snow here that stayed on the ground for some thirty days that we didn’t turn a wheel on the project, and the government allowed us an addition of time for that, and there were other things that just caused the project to lag, some of the construction.”

At the trial plaintiff’s witness Mace was asked, “ * * * you have initiated the job and you contemplate finishing the job, is that correct?” And he answered, “That’s right.” Defendant Brezner stated that plaintiff commenced the project and that it was never up to schedule. His contract with the government carried a delay penalty of $200 per day. The job was far behind, was not yet, at trial time, completed, and the $200 per day penalty was running. Some of the delay was due to bad weather and some of it wasn’t. In October 1960 the project was 40 or 50 or 60 days behind. For awhile, when one Stewart worked in the Fort Wood office, he, Brezner, would get a list of checks which plaintiff had written. The list of these was kept and forwarded by Stewart. Padgett fired Stewart in March, and after that Brezner got no more lists.

In late October Brezner sent his agent, John Skodack, to Fort Wood to lqpk over things. Skodack spent some twelve or thirteen days making a survey of the situation, but Padgett continued in charge of the project. Finally on November 7, 1960, Brezner wrote Padgett a letter as follows:

“Since the job is about wound up, I have decided to leave John Skodack at the camp until the final acceptance. Your own work will finish up at the end of this week. Please arrange to turn all office records over to John at that time.
“As of the moment we do not have another job to put you on, as you are undoubtedly aware. When you stop at the office on your way home we will discuss matters further.”

Plaintiff left on November 9 and departed for Lebanon, Missouri, and thereafter Sko-dack took over as project manager.

When plaintiff left employment he took with him certain records of the company. Included in these were a ledger sheet which plaintiff said was a list of deposits and checks written, also a list of “all the checks that I cashed.” Skodack testified that when he took over there was no checkbook. Pad-gett had these in his possession. Skodack drove to Lebanon and Padgett gave him the check stub book and two boxes of fittings.

Padgett agreed that he did not stop to see the defendant Brezner, nor did he personally make any demand upon Brezner. Instead he went to Lebanon. There he consulted an attorney. On November 9, 1960, he wrote himself a check on the Brezner account' for $1,600, which he claims as “advance” on the amount of commission due him. He made no stub in the checkbook which would show the issuance of this check.

He also wrote a check for $100 payable to “cash,” which he says was for expenses to go back home (to Lebanon?).

The record shows that he agreed to or admitted the writing of other checks as follows:

A check for $150, date November 1, 1960, payable to “cash,” which he said was cash for clerical help, typing weekly time sheets from May 1 to November 1, 1960.

“Q. Did that $150 go to you?
“A. Yes, sir.
“Q. And did you pay for typing and clerical expenses with that hundred dollars ?
“A. I haven’t paid for that yet. I still owe the man.”

A check for $200, date February 15, 1960, payable to plaintiff, which he said was a personal loan he made to a friend, a workman. He says that he informed Brezner of this check. The money had been repaid to him but he had not repaid Brezner.

A check for $369, dated August 9, 1960, payable to a motor company, which he says was down-payment on a new automobile he purchased. He says he repaid the Brezner account for this, and that he thought he informed Brezner of this transaction.

Plaintiff agreed that, of unauthorized checks he had written, $450 had not been refunded to Brezner. He gave as his reason for taking and retaining financial records of the project after his discharge, “I was laid off without any reason. I kept the records so I would have them in case that — -if I needed them.”

The amount of Padgett’s claim is based on the difference in the contemplated cost which Brezner had set up as an estimate on the three items (subcontracted by Mace) and the actual or concluding cost of these portions of the project, the alpha and the omega. He places the beginning figure at $152,000. To arrive at that figure he says when he took the job Brezner gave him the original plans and specifications and his (Brezner’s) cost breakdown of all the items, in which had been figured or estimated what the cost of each item would be. He said this breakdown was typewritten on “a piece of paper.” Asked where that cost breakdown paper was, he said, “It was left right in my office at Fort Leonard Wood.” Testifying from recollection as to the contents of this breakdown of cost estimate, he said the cost of clearing and grubbing was $4,000. Grading was $68,000. “On the roads were — now I could be off a thousand dollars one way or other because I didn’t have the original copy Mr. Brezner gave me, but to the best of my knowledge the roads was $80,000.” The total of these items was $152,000, his alpha. It is this testimony which is the basis for appellant’s first assignment of error. The contention is that such testimony (as to the content of the cost breakdown paper) was in violation of the best evidence rule.

The respondent contends that the defendant did not object to such testimony, and our first problem, therefore, is to determine whether the defendant made the objection. At the outset plaintiff had a paper marked as an exhibit which does not appear in evidence hut which we gather from colloquy was “a revised document over something which had previously been gone over between you and Mr. Mace and Mr. Brez-ner.” “Yes, due to deletions made by the engineers on the contract.” He was then asked if he could tell “from your knowledge of going over these plans and specifications what figures was allowed under the original items’and what the amounts of those figures were and what they were for.” Objection was made and sustained. Thereupon counsel for plaintiff stated that “the question doesn’t go to this document at all * ⅜ *. I asked him if he knew from his own recollection in going over the original plans and specifications, if he knew what the figures were and what the allowances were for each of those items.”

“Mr. Donnelly: Well, then, I will object for the reason the record is the best evidence.
“The Court: Are you talking about some matters that were brought to the attention of the defendant?
“Mr. Winchell: Yes, they were brought — I said the question was between the plaintiff, the defendant, and the witness himself when they sat down and they talked about them, and if he knew what the figures were and what they were for.”

The court permitted the witness to answer and he testified as to the beginning figures which were contained in the paper. Later on the examination disclosed that the record concerning the items of costs was actually on one sheet of paper which was not really a part of the original plans and specifications, but was defendant’s alleged breakdown of cost in calculating his bid. But the defendant made his objection on the basis of the best evidence rule at the first opportunity. It should also be borne in mind that, in his representations to the court after the objection was made, plaintiff’s counsel in referring to these figures stated that the defendant and the witness sat down and talked about the figures. [This may have been the reason for the court’s overruling the objection (on the theory that the actual figures were a part of the whole conversation which made up the oral contract).] Nowhere in the plaintiff’s testimony does if appear that the figures so related by him were actually mentioned in that conversation, nor does he claim that the figure of $152,000 or the lesser figures which made that total were mentioned in the discussion which made up the oral contract. The whole of plaintiff’s alpha is based upon his testimony as to recollection of what went into a breakdown of estimated costs, rather than from any actual talk between the parties. Defendant testified that he never heard of the figure $152,000 until the lawsuit. Plaintiff’s witness Mace never heard it mentioned. Defendant testified that he made his bid for the job to the Kansas City office of the Army Engineers. He definitely had a figure somewhere as to what the items were going to cost him and he had records on what he submitted to Kansas City; but he did not bring them to the trial because he did not know they would be necessary. The record does not disclose any subpoena, notice, or call upon the defendant to produce the cost breakdown which plaintiff states he left in the office at Fort Wood. Defendant produced, on his own volition, an exhibit which is referred to as a progress report, purported to have been submitted and signed by plaintiff Padgett on November 30, 1959, and approved by the contracting office (presumably the Corps of Engineers). This report showed fourteen items of construction. Opposite each construction item w-as a figure in a column entitled “value.” (Defendant testified that these values included the cost of construction plus, allocated to each item, a proportionate part of the general contractor’s cost, such as bond, insurance, project manager’s salary, overhead, et cetera. As to this plaintiff did not testify.) These items listed showed “site clearance” $4,000, which accords with plaintiff’s oral testimony; “grading” $58,000, $10,000 less than plaintiff had testified; and “roads” $85,000, $5,000 more than plaintiff had testified; (total of the three items, $147,000). The plaintiff did not resume the stand and testify as to this report. Nor did he testify in respect to whether general costs were apportioned against the various items.

We are of the opinion that defendant’s claim of error in respect to permitting the plaintiff to testify as to the contents of the written instrument must be sustained.

It is true, as respondent contends, that the defendant did not object to oral testimony as to the contents of the paper which finally came to be referred to as the cost breakdown. But he did, at his first opportunity, object to oral testimony concerning the contents of the instrument which plaintiff then represented as the “original plans and specifications” (and had the instrument been such, defendant’s objection would have been good). The fact, as it later developed, after the figures were in and before the jury, that the contents so testified to were those of another paper (the cost breakdown), even though the misrepresentation was unintentional, should not deprive the defendant of his objection. He did object in the form the evidence was offered. Nor should the plaintiff be permitted to, unintentionally of course, mislead the court by creating the impression that the figures so testified to were actually figures which were verbally discussed and thus became a part of the conversation which comprised the alleged oral contract. True, the defendant could, and should, have moved to strike the testimony, after it became apparent that it had ridden into the evidence on a false vehicle. But the evidence was already before the jury and the fact that he did not do so should not deprive him of the benefit of his objection.

It is an elementary principle of law that the best evidence of which the case in its nature is susceptible and which is within the power of the party to produce, or is capable of being produced, must always be produced in proof of every disputed fact. Hence, the best proof of the contents of a writing is the writing itself. And “the mere fact that one’s adversary is in possession of a writing containing facts relevant to the issues in the case does not warrant the introduction of secondary evidence of its contents. To lay the foundation for the introduction of secondary evidence, the proponent must show that he has done all in his power to secure the best evidence by giving his adversary notice to produce the desired writings or supplying an adequate reason excusing the giving of such notice.” There is nothing in the record to show that any notice to produce, demand, or subpoena was issued for the paper which contained the cost breakdown. The evidence in this case illustrates the soundness of the best evidence rule. Plaintiff testified to recollection of certain figures. “I could be off a thousand dollars one way or other.” The later figures apparently issued under his name (which defendant says also included apportioned over-all cost) show him to be at variance in the amount of $10,000 in one item and $5,000 in another.

Respondent does not seriously dispute the application of the best evidence rule, but he contends that such testimony was competent as a part of the res gestae. Respondent confuses the rule to the extent that res gestae is an exception to the hearsay rule. And even when the res gestae rule is applicable, secondary evidence must come from the best source available. Thus the two rules sometimes work hand in hand. We have no doubt that the instruy ment showing the figures claimed would have been admissible as a part of the facts and circumstances concerning the verbal contract. Salmons’ Adm’rs v. Davis, 29 Mo. 176, 182; Lyons v. Corder, 253 Mo. 539, 162 S.W. 606, 608. As a matter of fact, all applicable statements and acts of the interested parties, and sometimes the surrounding circumstances, are admissible if they shed light on the purpose, meaning, and intent of the parties to an oral contract. Gibbons v. Chomeau & Engelland, 240 Mo.App. 41, 210 S.W.2d 715, 717-718; Keeton v. Sloan’s Moving and Storage Company, Mo.App., 282 S.W.2d 194, 198. But that does not mean that those things shall not be shown by the best evidence available.

Passing appellant’s second contention on the question of whether there was testimony of a demand (because a retrial of the case should result in testimony which is not so indefinite), we go to appellant’s third assignment in reference to respondent’s instruction 1. This instruction told the jury that if plaintiff was employed as project manager, and if he “obtained a reduction on items of road construction from $152,000 to the sum of $105,000 and effected a savings of $47,000 on such projects’’; and if the contract of employment allowed a 10% payment to defendant and thereafter 10% of the net reduction was to be paid plaintiff, then plaintiff would be entitled to $4,-230; and if plaintiff had received $1,600 toward payment thereof and demand had been made for $2,630 and defendant had failed to pay the same, then the verdict should be for the plaintiff.

There are several attacks upon this submission. One of them is that it ignores time of payment. We are of the opinion that the exception is well taken. Plaintiff’s testimony (and the only testimony or evidence pertaining to the commission or bonus agreement) was that defendant said “if I could save some money on this job that he would pay a commission.” “The agreement was that I would receive the money when the job was completed." All the evidence, including the testimony of the plaintiff, shows that the job was not completed when plaintiff was discharged. And the testimony of plaintiff’s witness Mace and of the defendant Brezner was that the job was not completed at trial date and was running under a $200 per day penalty. The testimony of Mace, the man for whose bid plaintiff claims a commission, indicates that he had not yet, at trial time, finished his subcontract.

Thus we have two possible elements involved in time of payment: (a) according’ to plaintiff’s testimony it was to be when the job was completed, and (b) since the amount, if any, to be due was dependent upon what the plaintiff had “saved” the defendant by his activities, it would seem that the situation would require that the project be completed or so nearly completed as to permit a casting up of final cost against anticipated or estimated cost. The jury was not required to find either of these propositions, and in fact the evidence does not show that either event has occurred. The instruction simply assumes that a certain-amount was due, as though the plaintiff were a broker instead of a project manager.

Ordinarily money is due and payable when there is a legal obligation to pay and the time set for payment has arrived. If no time is fixed, the law will deem the account payable when the payee has fully performed his obligation and nothing remains to be done except the payment. Unless a contrary intent appears, a consideration is ordinarily to be paid upon the accomplishment of the purpose or object for which the consideration moves.

We gather from respondent’s argument that he is of the opinion that he was wrongfully discharged and therefore the time of payment was accelerated and his “brokerage” fee became due and payable immediately, and that he was entitled to payment of a stated amount upon demand. We do not here decide whether such discharge was wrongful in fact or in law; but if this was plaintiff’s theory it was entirely omitted from the instruction and the jury’s consideration.

It is our judgment that the judgment should be reversed and remanded for a new trial. It is so ordered.

McDOWELL and STONE, JJ., concur.

      . Padgett produced at the trial the cheek ledger records above-mentioned.

      . Baker v. Atkins, Mo.App., 258 S.W.2d 16, 20, 21; Housden v. Berns, 241 Mo.App. 1163, 273 S.W.2d 794, 799; Miller v. John Hancock Mut. Life Ins. Co., Mo.App., 155 S.W.2d 324, 327; Wilson v. Supreme Liberty Life Insurance Company, Mo.App., 343 S.W.2d 649, 651; Wilson v. Motors Insurance Corporation, Mo.App., 349 S.W.2d 250, 254; Siegel v. Ellis, Mo., 288 S.W.2d 932, 940; Newport v. Montgomery Ward & Co., 344 Mo. 646, 127 S.W.2d 687, 689; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721, 724(2).

      . 20 Am.Jur., Evidence, § 442, p. 395; 76 A.L.R.2d 1356, 1366; Miller v. John Hancock Mut. Life Ins. Co., Mo.App., 155 S.W.2d 324, 328; Metropolitan Discount Co. v. Wasson, Mo.App. 235 S.W. 465, 460; Martin v. Martinous, Mo.App., 219 S.W.2d 067, 675; State v. Lentz, 184 Mo. 223, 83 S.W. 970, 974; E. C. De Witt & Co. v. Buford, 173 Mo.App. 78, 155 S.W. 884, 885; Merrill Chemical Co. v. Nickells, 08 Mo.App. 678, 692; see Wilson v. Motors Insurance Corporation, Mo.App., 349 S.W.2d 250, 254.

      . McKenzie Transport Leasing Co. v. St. Louis Public Service Co., Mo.App., 349 S.W.2d 370, 372; Logger v. Great Northern Life Ins. Co., Mo.App., 216 S.W.2d 106, 109; State ex rel. Massman v. Bland, 355 Mo. 17, 194 S.W.2d 42, 46.

      . See Wilson v. Supreme Liberty Life Insurance Co., Mo.App., 343 S.W.2d 649, 651; Stephan v. Metzger, 95 Mo.App. 609, 69 S.W. 625; see Citizens’ State Bank of Atlanta, Kan., v. Ferson, Mo.App., 208 S.W. 136; Housden v. Berns, 241 Mo.App. 1163, 273 S.W.2d 794, 799.

      . 17 C.J.S. Contracts § 503d (1), p. 1066; Doerflinger Realty Company v. Fields, Mo.App., 281 S.W.2d 609, 613; Vrooman v. City of St. Louis, 337 Mo. 933, 88 S.W.2d 189, 199; Swanson v. Spencer, 177 Mo.App. 124, 163 S.W. 285, 286; Isaac T. Cook Company v. Bank of St. Louis, Mo.App., 297 S.W.2d 607, 611; Litchgi v. Gottlieb, 134 Mo.App. 237, 113 S.W. 1134, 1135.


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    Inez HOSFORD, a minor, by Helen Hosford, her natural guardian and next friend, Plaintiff-Appellant, v. Larry CLARK, a minor, by Harold D. Jones, guardian ad litem, Defendant-Respondent.
    No. 7999.
    Springfield Court of Appeals. Missouri.
    July 24, 1962.
    Motions for Rehearing or to Transfer Overruled Aug. 22, 1962.

      Ward & Reeves, Caruthersville, for plaintiff-appellant.
    Bock & Jones, New Madrid, for defendant-respondent.
   STONE, Judge.

Juvenile jollity and giddy gaiety were, in the twinkling of an eye, translated and transformed into mischievous misadventure and miserable misfortune when, on a country road near Portageville, Missouri, about 11:00 P.M. on Saturday, September 19, 1959, plaintiff, Inez Hosford, then fourteen years of age, fell or was thrown from the right front fender of a 1957 Oldsmobile sedan being driven by defendant, Larry Clark, then seventeen years of age. Damages were denied by a nine-man jury verdict for defendant; and, on this appeal from the judgment entered on the verdict, the only points presented by plaintiff are that the trial court erred in giving defendant’s instructions 6 and 7. Defendant answers that any error in said instructions was cured by plaintiff’s instructions 4 and 8, and further that, in any event, plaintiff was guilty of contributory negligence as a matter of law and thus did not make a submissible case. If the latter contention be well-taken, defendant’s motion for a directed verdict at the close of the evidence should have been sustained and instructions given at his request (even though erroneous) could not have prejudiced plaintiff. Brooks v. Stewart, Mo., 335 S.W.2d 104, 105(1), 81 A.L.R.2d 508; Seeley v. Hutchison, Mo., 315 S.W.2d 821, 824(1); Burks v. Buckmiller, Mo.App., 349 S.W.2d 409, 411(1). Accordingly, we first consider whether plaintiff was con-tributorily negligent as a matter of law.

Early on the evening of the accident, plaintiff Inez, with thirteen-year old Linda Young and fourteen-year old Sandra Hall, had gone downtown in Portageville to a carnival operating in connection with the annual “Soybean Festival.” Having done the carnival attractions, this trio of girls, afoot on Main Street about 9:30 P.M., were sighted by a trio of teen-age boys in the Oldsmobile. We observe parenthetically that the automobile was owned by one Or-bin McHugh, defendant Larry’s “cousin by marriage,” who had permitted his fifteen-year old son, Michael David (Mike) Mc-Hugh, although unlicensed to operate a motor vehicle, to take the family automobile that evening and to drive it from the McHugh farm home to the farm home of defendant Larry’s family about one mile distant with the understanding that Larry would drive from that point. So it was that on Main Street in Portageville later that evening Larry was at the wheel of the McHugh automobile with fifteen-year old Mike McHugh and eighteen-year old Vernon Stills, a neighbor youth, also in the automobile. Larry asked the girls if they “wanted to go riding” and, having demurely hesitated for a moment, they accepted his invitation and got into the back seat of the Oldsmobile.

After driving in Portageville for some twenty or thirty minutes, defendant Larry left town on an unpaved country road which afforded a more appropriate setting for the protracted series of zany antics inspired by the occasion. Larry opened the cross fire of youthful buffoonery by switching the ignition off and on until the Oldsmobile stopped and then by pretending that “we are out of gas.” Thirteen-year old Linda retaliated in kind by reaching over the front seat and grabbing the keys. Then all three girls jumped from the automobile, ran down the road ahead, and threw the keys back and forth from one to another. Two of the boys, defendant Larry and fifteen-year old Mike, immediately joined in the frivolous frolic; and, as plaintiff Inez described the action, “we started scuffling with the key” or, as Mike graphically portrayed it, the boys “took in after them (the girls) and we scrambled around there a little bit.” When he regained possession of the keys, Larry told Linda that she had lost one of the keys, although, as Mike explained, “we really hadn’t lost one — Larry just told her that.” Leaving Linda to hunt for the “missing” key, the others returned to the automobile, plaintiff Inez and Sandra got into the back seat again, and defendant Larry started the motor, drove down the road to Linda, and terminated her search for the nonexistent key.

In the exhilaration and the exuberance of the moment, Linda climbed on the left front fender and sat sideways with her legs hanging over the side of the fender, holding (so plaintiff Inez thought) to “the windshield wipers or something.” Not to be outdone by Linda, the other two girls left the back seat of the automobile, Sandra assumed a sitting position “in the middle of the hood” with her back to the windshield and her legs and feet on the hood, and plaintiff seated herself on the front of the right front fender, facing forward with her feet on the front bumper, and holding with her left hand to an emblem or ornament on the hood. Admitting that he knew that “it was dangerous for these girls to be riding on the front fender (sic) and hood,” defendant Larry testified that he had “asked them (the girls) not to ride up there”; and in this he was supported by Mike who quoted Larry as having told the girls, “would you please get off the front because my dad said not to let anyone ride on the front — it is dangerous.” But, both plaintiff and Linda testified that they had heard no such request or warning, and the evidence reasonably would have permitted a finding that none was given.

In any event, Larry started forward with the girls draped over the front of the Oldsmobile in the described positions. Proceeding (so he said) at a speed never in excess of fifteen miles per hour, he drove without incident “approximately a quarter of a mile” in the course of which he rounded a sharp curve to his left. Approaching a second curve described by him as “a corner,” Larry slackened speed to about five miles per hour; and, as he completed this curve, he spotted a side road where he could turn around. Intending so to do, Larry quickly applied the brakes, the automobile immediately stopped, and plaintiff unceremoniously fell or was thrown from the right front fender. Larry frankly stated upon trial that he had not driven previously either his cousin’s Oldsmobile involved in this occurrence or, for that matter, any other automobile with power brakes, and that the power brakes on the Oldsmobile had “grabbed hold quicker” than he had anticipated. The medical testimony was omitted from the transcript as not relevant to any issue upon appeal, but the reader may be interested to know that the record reflects relatively mild injuries and thus only near-tragic rather than calamitous consequences.

In support of his contention that plaintiff was contributorily negligent as a matter of law, defendant cites three cases [Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573; Sanford v. Gideon-Anderson Co., Mo.App., 31 S.W.2d 580; Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420], all of which involved adult riders on motor vehicles but only one of which [Smith, supra] held the rider guilty of contributory negligence as a matter of law. It is true that, as the adjudicated cases demonstrate, minors in the age range of plaintiff and her girl companions may be, in some circumstances, contributorily negligent as a matter of law. However, it is clear that a child is to be judged as such and not as an adult, “‘(f)or no court can hold that childhood and manhood are bound to observe the same degree of diligence.’ ” Jackson v. Butler, 249 Mo. 342, 370, 155 S.W. 1071, 1079(16). And, the authorities leave no room for doubt but that the care and caution required of a minor, who is of sufficient age to be chargeable with contributory negligence, is that ordinarily exercised by others of the same age, experience and capacity under the same or similar circumstances.

It lias been recorded, as a general principle, that: “ ‘A voluntary exposure to known danger is an essential element of contributory negligence. Moreover, it is the appreciation of, or the opportunity to appreciate, the peril in an instrumentality or condition, rather than a knowledge of its physical characteristics, that bars a plaintiff of recovery for negligence.’” Bartlett v. Taylor, 351 Mo. 1060, 1071, 174 S.W.2d 844, 851(10, 11); 38 Am.Jur., Negligence, § 188, p. 864. A fortiori, in actions by minor plaintiffs, it becomes appropriate and necessary to bear in mind that: “Knowledge and appreciation of the danger and risk of injury, actual or imputed, is essential in order that a child may be guilty of contributory negligence. Mere knowledge that injury might result, without appreciation of the risk of injury to which his conduct exposed him, is not sufficient.” Turner v. City of Moberly, 224 Mo.App. 683, 685, 26 S.W.2d 997, 998; Wilson v. White, Mo.App., 272 S.W.2d 1, 6-7(12); United States v. Stoppelmann, 8 Cir., 266 F.2d 13, 19. In so stating, courts but recognize that which is common knowledge, i. e., that thoughtless conduct, impulsive action and immature judgment are concomitants of youth, and that, although “a boy (or a girl) may have all the knowledge of an adult respecting the dangers which will attend a particular act * * * at the same time he (or she) may not have the prudence, thoughtfulness, and discretion to avoid them which aré possessed by the ordinarily prudent adult person.” Burger v. Missouri Pac. R. Co., 112 Mo. 238, 249, 20 S.W. 439, 441; Holmes v. Missouri Pac. Ry. Co., 190 Mo. 98, 107, 88 S.W. 623, 625.

Since “(t)here is no fixed rule of law by which to gauge, or scale by which to nicely weigh, the acts of a minor to determine if he (or she) is guilty of contributory negligence” [Jackson v. Butler, supra, 249 Mo. loc. cit. 369, 155 S.W. loc. cit. 1079], and since, in each instance, not only the age of the minor but also “the peculiar circumstances of the particular case, the knowledge and experience of the child in reference to those circumstances, and his capacity to appreciate the danger” must be taken into consideration [Moeller v. United Rys. Co., 242 Mo. 721, 729, 147 S.W. 1009, 1012 (6)], whether a minor plaintiff has been guilty of contributory negligence, i. e., whether the minor both knew and appreciated the danger and the risk of injury, is usually for the triers of the facts. For that matter, judicial declaration that any plaintiff has been contributorily negligent as a matter of law is permissible and proper only where it may be said upon the whole evidence and all inferences deducible therefrom, when viewed in the light most favorable to plaintiff, that the only reasonable conclusion is that plaintiff was guilty of negligence proximately causing his injury.

Exemplifying the inexhaustible, incredible capacity of the human race to concoct, conceive and create bizarre situations presenting unnecessary and inordinate danger to life and limb, some weird factual concatenations involving riders on (as distinguished from in) motor vehicles have come to our appellate courts. E. g., Smith v. Ozark Water Mills Co., supra, in which a 26-year old man, standing at night on the left running board of an automobile rounding a sharp curve on the wrong side of an unpaved road and holding a possum in his left hand and the strap on the back of the front seat in his right hand, was thrown from the running board by an abrupt swerve to sudden death under the wheels of an approaching unlighted track; Sanford v. Gideon-Anderson Co., supra, in which an adult, standing by day on the right running board of a truck traveling 35 to 40 miles per hour on a graveled road, was thrown to his death when the truck skidded into a ditch and overturned; Hathaway v. Evans, Mo.App., 235 S.W.2d 407, in which an adult plaintiff, kneeling in freezing weather on top of a load of loose hay with snow whipping into his face and holding to the handles of two pitchforks driven into the hay, was upended and cast onto the frozen roadway by a taut telephone wire; and Ward v. Penn Mutual Life Ins. Co., Mo.App., 352 S.W.2d 413, in which a 30-year old telephone lineman, climaxing a beer-drinking bout by riding “spread-eagled” on top of a station wagon, fell or was thrown to his death on a city street. But neither counsel nor the court has discovered any “fender case” among the reported Missouri decisions.

However, we have found a number of cases in other jurisdictions falling into this factual category. Where the fender riders have been adults, the cases appealing to us as better-reasoned and sounder in principle hold such riders contributorily negligent as a matter of law, although other cases indicate that in some circumstances the contributory negligence of even adult fender riders properly may be for the jury. But, where the fender riders have been minors within the age range of plaintiff and her companions, all of the courts of our sister states, to whom this question has been put, have been of one mind in declaring the issue of contributory negligence to be for determination by the triers of the facts.

In the case before us, we know very little about plaintiff Inez other than that she was fourteen years of age at the time of accident. The record does not reveal the extent of her formal education (or, for that matter, whether she had gone to school), the scope of her experience as a rider either in or on motor vehicles (presumably, at her age, she had had no experience as a driver), or the measure of her physical strength or her mental development. Certainly, nothing suggests precocity of intellect, judgment, or capacity to comprehend danger and appreciate the risk of injury therefrom. We have not overlooked the fact that, as defendant's counsel point out, plaintiff told her girl companions that “you better hang on or you’ll fall”; but obviously this may not be said to have indicated comprehension of danger or appreciation of the risk of injury at a time when she thereafter could have avoided exposure thereto, for this statement was made while the Oldsmobile was in motion and she “fell off right after that.” Believing that reasonable minds well might disagree as to whether plaintiff fully comprehended the danger and appreciated the risk of injury inherent in her action and conduct, we are constrained to conclude that the issue of contributory negligence was for the jury and that therefore defendant’s motion for a directed verdict properly was overruled.

This brings us to the complaints about defendant’s instructions 6 and 7. Instruction 6 opened with the statement that plaintiff “was bound to exercise ordinary care for her own safety at the time and place mentioned in the evidence, that is, such care as an ordinary prudent person wotdd exercise under the same or similar circumstances.” (All emphasis herein is ours.) This instruction then told the jurors that, “if you find and believe from the evidence that plaintiff, Inez Hosford, elected to ride on the right front fender of the automobile * * * and that there was a seat available to her inside said automobile, and if you find that in so doing, plaintiff * * * failed to exercise ordinary care for her own safety, and * * * that such act * * * directly contributed to her injuries, if any, then you should find plaintiff * * ⅜ guilty of contributory negligence and she cannot recover herein * * * and this is so even though you find that the defendant was negligent under instructions no. 1 or 2.” Instruction 7, repeating and emphasizing the definition of ordinary care in instruction 6, told the jury that “by the term ‘ordinary care’ as used in these instructions is meant that degree of care and caution which an ordinary prudent person would exercise under the same or similar circumstances.” Thus, instruction 6 un-qualifiedly obligated plaintiff Inez to exercise ordinary care, and thereby imposed upon her the duty to exercise that degree of care “which an ordinary prudent person would exercise under the same or similar circumstances,” since both instructions 6 and 7 defined ordinary care in that language. This clearly was erroneous because, as we have found, the care required of a minor of plaintiff’s age is that ordinarily exercised by others of the same age, experience and capacity under the same or similar circumstances. See again the authorities listed marginally in note 3.

True, the degree of care required of plaintiff was, in instructions 4 and 8 given at her request, stated in substantially correct terms. But, this does not bring defendant within the curative cloak of the oft-invoked principle that all instructions should be read together and considered as a whole and if, when so read and considered, they are harmonious, clear and complete, reversible error cannot be found because one of them, considered singly, may be defective. Faught v. Washam, Mo., 329 S.W.2d 588, 597(10); Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 81(8); Layton v. Palmer, Mo., 309 S.W.2d 561, 570(20), 66 A.L.R.2d 1242. In Warren v. Kansas City, Mo., 258 S.W.2d 681 (upon which instant defendant primarily relies), defendant’s criticized instruction on contributory negligence “did not in point of fact purport to set forth the degree of care to be exercised” by plaintiff [258 S.W.2d loc. cit. 683] and, with plaintiff’s given instructions plainly stating the care required of him, “omitting reference to the care required of a minor” in defendant’s instruction could not have been erroneous or prejudicial when all of the instructions were read and considered together. [258 S.W.2d loc. cit. 684(4)] And, again in Hustad v. Cooney, Mo., 308 S.W.2d 647 (also cited by instant defendant), defendant’s censured instruction did not “either expressly or impliedly, purport to advise the jury as to the degree of care to be exercised” by plaintiff [308 S.W.2d loe. cit. 649], that matter having been covered fully and accurately in plaintiff’s given instruction. But, the holdings in Warren and Hustad, supra, do not reach or control the case at bar, for the vice of instant defendant’s instructions 6 and 7 is not one of harmless omission or negative nondirection but is rather one of positive misdefinition and affirmative misdirection which leaves the instructions, when considered as a whole, in a state of blatant discord and utter confusion.

The degree of care implicitly imposed upon plaintiff Inez by defendant’s instructions 6 and 7 was erroneous and in irreconcilable conflict with the degree of care stated in substantially correct terms in plaintiff’s instructions 4 and 8. With plaintiff’s and defendant’s instructions having submitted different standards of care, we cannot say that the jury did not follow defendant’s erroneous submission. Dixon v. General Grocery Co., Mo., 293 S.W.2d 415, 421(8); Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358, 365(14); Burlingame v. Landis, 362 Mo. 523, 242 S.W.2d 578, 581 (4). See also Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 131(11). For the giving of defendant’s instructions 6 and 7, the judgment must be set aside and the cause remanded for retrial. See particularly Bussey v. Don, Mo., 259 S.W. 791, 793(4). Consult also Goodwin v. Eugas, 290 Mo. 673, 236 S.W. 50, 53(2), and Dorlac v. Bueneman, Mo.App., 129 S.W.2d 108.

It is so ordered.

RUARK, P. and McDOWELL, J., concur.

      . Boesel v. Wells Fargo & Co., 260 Mo. 403, 169 S.W. 110, 113-114(3); McGee v. Wabash R. Co., 214 Mo. 530, 114 S.W. 33, 37 (15); Spillane v. Missouri Pac. Ry. Co., 135 Mo. 414, 37 S.W. 198, 201; McFarland v. Grau, Mo.App., 305 S.W.2d 91, 101-103(4, 5); Van Alst v. Kansas City, 239 Mo.App. 346, 186 S.W.2d 762, 766(5); Turner v. City of Moberly, 224 Mo.App. 683, 26 S.W.2d 997, 999(7); Battles v. United Rys. Co. of St. Louis, 178 Mo.App. 596, 161 S.W. 614, 623-624 (14, 15); Henry v. Missouri Pac. Ry. Co., 141 Mo.App. 351, 125 S.W. 794(2); Stegmann v. Gerber, 146 Mo.App. 104, 123 S.W. 1041, 1045(3).

      . Moeller v. United Rys. Co., 242 Mo. 721, 147 S.W. 1009, 1011(4); Czernicke v. Ehrlich, 212 Mo. 386, 111 S.W. 14, 17; Anderson v. Union Term. R. Co., 161 Mo. 411, 424, 61 S.W. 874, 878: Doran v. Kansas City, Mo.App., 237 S.W.2d 907, 912; Erxleben v. Kaster, Mo.App., 21 S.W.2d 193. 198(12); Smiley v. Jessup, Mo.App., 282 S.W. 110, 112(6); Sailer v. Friedman Bros. Shoe Co., 130 Mo.App. 712, 109 S.W. 794, 797.

      . Warren v. Kansas City, Mo., 258 S.W.2d 681, 683(3); Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57, 58(5); Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071, 1079(16); Spillane v. Missouri Pac. Ry. Co., supra, 37 S.W. loc. cit. 201(2); Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117, 125(11); Lottes v. Pessina, Mo.App., 174 S.W.2d 893, 899(12); Dorlac v. Bueneman, Mo.App., 129 S.W.2d 108, 110(2); annotation 174 A.L.R. 1080, 1084, 1134-1145; annotation 107 A.L.R. 4.

      . Dye v. Geier, Mo., 345 S.W.2d 83, 87 (3); Binion v. Armentrout, Mo., 333 S.W.2d 87, 91(4); Kickham v. Carter, Mo., 314 S.W.2d 902, 908(8); Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 500(4); Anderson v. Welty, Mo.App., 334 S.W.2d 132, 138(9); Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 271 (1); Hathaway v. Evans, Mo.App., 235 S.W.2d 407, 412(13).

      . Hinch v. Elliott, 119 Conn. 207, 175 A. 084; Wheeler v. Buerkle, 14 Cal.App.2d 368, 58 P.2d 230; Granfield v. Herlihy, 322 Mass. 313, 77 N.E.2d 223; Central Transfer & Storage Co. v. Frost, Ohio App., 36 N.E.2d 494, 498-499.

      . Johnson v. Podicord, 105 Ind.App. 71, 10 N.E.2d 295; Smith v. American Oil Co., 77 Ga.App. 463, 49 S.E.2d 90; Collier v. Young, D.C.Mun.App., 94 A.2d 645.

      . Byers v. Gunn, Fla., 81 So.2d 723; Lassiter v. Poss, 85 Ga.App. 785, 70 S.E.2d 411; Bordelon v. Great American Indemnity Co., La.App., 124 So.2d 634, 637-638(1, 2); Hammett v. Fleming, Tex.Civ.App., 324 S.W.2d 70, 74(7, 8), error refused n. r. e.; Tenney v. Enkeball, 02 Ariz. 416, 158 P.2d 519; Bruno v. Grande, 31 Ariz. 206, 251 P. 550; Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Jewel Tea Co. v. Sklivis, 231 Ala. 590, 165 So. 824.