GANTT, P. J.
This is an appeal from an order of the circuit court of Jackson county, granting plaintiff a new trial. The action is for damages for personal injuries. The plaintiff is a boy about twelve years old, rather small for his years.
Just prior to the trespass to his person, of which he complains, he had gone with some other boys into an empty box car standing in the yards of the Kansas City Milling Company to gather up the wheat left therein when unloaded. While other boys had been in the habit of going into these empty cars and gleaning the loose wheat and corn left therein, this was plaintiff’s first visit. The company, it seems, was annoyed by the boys and ordered Quade to keep them out. On August 3, 1898, Quade discovered some boys, including plaintiff, in one of the cars. The car was standing east and west, and both doors, that on the north and the one on the south, were open. Quade ordered Kemper, another employee, to close the south door quickly, and at the same time he attempted to shut the north door. Plaintiff’s testimony tends to show that Quade had a club in his hand at the time, and just as he undertook to close the north door, exclaimed to the boys with an oath, “Get out or I will hurt you.” Plaintiff was greatly frightened at the threat and action of Quade and the prospect of being imprisoned in the car, and endeavored to escape out of the north door, which for some reason Quade did not succeed in closing entirely. [27]*27The evidence for plaintiff tended to show that Quade not only shoved the door violently against his side and left arm, but struck him with the club on the left arm, and by reason of the shove and the blow he fell to the ground and sustained a fracture of the bone of his left arm and of the cap of his elbow, resulting in a permanent injury. He sued for $4,000 for compensatory and $1,000 exemplary damages.
. For the defendant the evidence shows that Quade was acting under the orders of the milling company; that he was endeavoring to catch the boys in the car and turn them over to the police; that he did not strike plaintiff with a club at all or even strike at him; that in escaping from the car plaintiff got caught on the foot of another boy or some obstruction, which threw him sideways and caused him to fall on his left shoulder, and it was in this way he received his injury. Quade denied swearing at the boys and threatening them. The defendant’s evidence also tended to shove the injuries were not so serious as claimed by plaintiff and that defendants were using reasonable means to keep the boys from trespassing on the property of defendant.
The jury returned a verdict for defendant, and thereupon in due time plaintiff filed his motion for new trial, which the court sustained. This appeal is based upon the alleged error in sustaining this motion.
The grounds of the motion for new trial were briefly that the court erred in giving for defendant instructions numbered 3, 4, 5, 6 and 7; that instruction 5 for defendant was contradictory of instructions numbered 1 and 3 given for plaintiff. The court 'granted a new trial and specified in its record that it erred in giving instruction number 5 for defendant.
I. Preliminary to an examination of the question whether the court erred in granting a new trial on the ground that its instruction numbered 5 for defendant was erroneous, counsel have earnestly pressed us to [28]*28hold that inasmuch as the circuit court only granted the. new trial for the one error, plaintiff is precluded on this appeal from insisting the court erred in giving any other instruction or in any other respect. Counsel for defendant insists that this is the rule announced in Candee v. Railroad, 130 Mo. 142. This is a misapprehension of that case. We said in that case:
“l'f the trial court assumes to set aside a verdict for any reason not contained in the motion, it is still its duty to specify that reason upon the -record, but, whatever the grounds for its order, it was clearly the intention of the statute to give the right of appeal from its decision thereon, and if in the opinion of the appellate court its reasons are insufficient the verdict must stand and the cost of another trial avoided, in the absence of affirmative showing by the party in whose favor the new trial was granted that it ivas properly -set aside on other grounds.”
In that case, as in Bradley v. Reppell, 133 Mo. 545, no other exceptions to evidence or instructions had been taken and so the one instruction on which the court granted the hew trial-was the only point before us for review. In this case the plaintiff, as the record discloses, duly excepted to defendant’s instructions 3, 4, 5, 6 and 7, and insisted that defendant’s instruction 5 was in conflict with plaintiff’s instructions 1 and 2. So that the facts are entirely different from those disclosed in the Candee and Reppell cases. Here, as was said in that case, the plaintiff insists on making the “affirmative showing” that the new trial was proper]y granted on other grounds than the giving of the erroneous instruction number 5. This we hold may be done, and such is the settled practice in this court.
In Hewitt v. Steele, 118 Mo. 463, this court said: “It is thus made apparent that the opinion of the court in sustaining the motion for new trial did not become a part of the record of the court, and in this respect did not comply with the mandate of the law. But even [29]*29if it did, if the court’s action in granting the new trial can be sustained upon any ground shoivn by the record, and proceedings in the cause, the judgment must be affirmed.”
This is the universal holding when the court neglects to specify on its record the ground on which it sustains the motion. [Kreis v. Railroad, 131 Mo. 533; Bank v. Wood, 124 Mo. 72.]
The party obtaining the new trial has no occasion to appeal, but if he causes the record to set out his grounds for new trial in full, he is not precluded from showing by the record brought to the appellate court by his adversary, that he was entitled to the new trial, notwithstanding the trial court only specified one, and that one perhaps not a sufficient reason, for granting the new trial. [Bradley v. Reppell, 133 Mo. 560; Haven v. Railroad, 155 Mo. 216; Thompson v. Railroad, 140 Mo. 125.]
It follows, then, that if the court erred in giving the other instructions specified in his motion for a new trial by the plaintiff, the order granting the new trial was properly granted, although the court thought error had been committed only in giving defendant’s instruction 5.
Without incumbering this opinion with all of the pleadings and instructions, it will suffice to say that the plaintiff tried the case on the theory that Quade, acting by the direction of his co-defendant, the milling company, was guilty of a wanton and willful trespass and assault upon the plaintiff by beating him with a stick, and, by frightening him by curses and threats of assault, caused him to fall from the ear and break his arm, and the instructions embodied the principle that although the plaintiff was a trespasser by playing in the car, the defendants had no right to use more force than was necessary to eject him, and if they did assault him and beat him with a stick, or by attempting to close the doors of the car and by curses and threats [30]*30of violence so frighten him as to canse him to fall from the car and break h-is arm, then plaintiff was entitled to recover.
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GANTT, P. J.
This is an appeal from an order of the circuit court of Jackson county, granting plaintiff a new trial. The action is for damages for personal injuries. The plaintiff is a boy about twelve years old, rather small for his years.
Just prior to the trespass to his person, of which he complains, he had gone with some other boys into an empty box car standing in the yards of the Kansas City Milling Company to gather up the wheat left therein when unloaded. While other boys had been in the habit of going into these empty cars and gleaning the loose wheat and corn left therein, this was plaintiff’s first visit. The company, it seems, was annoyed by the boys and ordered Quade to keep them out. On August 3, 1898, Quade discovered some boys, including plaintiff, in one of the cars. The car was standing east and west, and both doors, that on the north and the one on the south, were open. Quade ordered Kemper, another employee, to close the south door quickly, and at the same time he attempted to shut the north door. Plaintiff’s testimony tends to show that Quade had a club in his hand at the time, and just as he undertook to close the north door, exclaimed to the boys with an oath, “Get out or I will hurt you.” Plaintiff was greatly frightened at the threat and action of Quade and the prospect of being imprisoned in the car, and endeavored to escape out of the north door, which for some reason Quade did not succeed in closing entirely. [27]*27The evidence for plaintiff tended to show that Quade not only shoved the door violently against his side and left arm, but struck him with the club on the left arm, and by reason of the shove and the blow he fell to the ground and sustained a fracture of the bone of his left arm and of the cap of his elbow, resulting in a permanent injury. He sued for $4,000 for compensatory and $1,000 exemplary damages.
. For the defendant the evidence shows that Quade was acting under the orders of the milling company; that he was endeavoring to catch the boys in the car and turn them over to the police; that he did not strike plaintiff with a club at all or even strike at him; that in escaping from the car plaintiff got caught on the foot of another boy or some obstruction, which threw him sideways and caused him to fall on his left shoulder, and it was in this way he received his injury. Quade denied swearing at the boys and threatening them. The defendant’s evidence also tended to shove the injuries were not so serious as claimed by plaintiff and that defendants were using reasonable means to keep the boys from trespassing on the property of defendant.
The jury returned a verdict for defendant, and thereupon in due time plaintiff filed his motion for new trial, which the court sustained. This appeal is based upon the alleged error in sustaining this motion.
The grounds of the motion for new trial were briefly that the court erred in giving for defendant instructions numbered 3, 4, 5, 6 and 7; that instruction 5 for defendant was contradictory of instructions numbered 1 and 3 given for plaintiff. The court 'granted a new trial and specified in its record that it erred in giving instruction number 5 for defendant.
I. Preliminary to an examination of the question whether the court erred in granting a new trial on the ground that its instruction numbered 5 for defendant was erroneous, counsel have earnestly pressed us to [28]*28hold that inasmuch as the circuit court only granted the. new trial for the one error, plaintiff is precluded on this appeal from insisting the court erred in giving any other instruction or in any other respect. Counsel for defendant insists that this is the rule announced in Candee v. Railroad, 130 Mo. 142. This is a misapprehension of that case. We said in that case:
“l'f the trial court assumes to set aside a verdict for any reason not contained in the motion, it is still its duty to specify that reason upon the -record, but, whatever the grounds for its order, it was clearly the intention of the statute to give the right of appeal from its decision thereon, and if in the opinion of the appellate court its reasons are insufficient the verdict must stand and the cost of another trial avoided, in the absence of affirmative showing by the party in whose favor the new trial was granted that it ivas properly -set aside on other grounds.”
In that case, as in Bradley v. Reppell, 133 Mo. 545, no other exceptions to evidence or instructions had been taken and so the one instruction on which the court granted the hew trial-was the only point before us for review. In this case the plaintiff, as the record discloses, duly excepted to defendant’s instructions 3, 4, 5, 6 and 7, and insisted that defendant’s instruction 5 was in conflict with plaintiff’s instructions 1 and 2. So that the facts are entirely different from those disclosed in the Candee and Reppell cases. Here, as was said in that case, the plaintiff insists on making the “affirmative showing” that the new trial was proper]y granted on other grounds than the giving of the erroneous instruction number 5. This we hold may be done, and such is the settled practice in this court.
In Hewitt v. Steele, 118 Mo. 463, this court said: “It is thus made apparent that the opinion of the court in sustaining the motion for new trial did not become a part of the record of the court, and in this respect did not comply with the mandate of the law. But even [29]*29if it did, if the court’s action in granting the new trial can be sustained upon any ground shoivn by the record, and proceedings in the cause, the judgment must be affirmed.”
This is the universal holding when the court neglects to specify on its record the ground on which it sustains the motion. [Kreis v. Railroad, 131 Mo. 533; Bank v. Wood, 124 Mo. 72.]
The party obtaining the new trial has no occasion to appeal, but if he causes the record to set out his grounds for new trial in full, he is not precluded from showing by the record brought to the appellate court by his adversary, that he was entitled to the new trial, notwithstanding the trial court only specified one, and that one perhaps not a sufficient reason, for granting the new trial. [Bradley v. Reppell, 133 Mo. 560; Haven v. Railroad, 155 Mo. 216; Thompson v. Railroad, 140 Mo. 125.]
It follows, then, that if the court erred in giving the other instructions specified in his motion for a new trial by the plaintiff, the order granting the new trial was properly granted, although the court thought error had been committed only in giving defendant’s instruction 5.
Without incumbering this opinion with all of the pleadings and instructions, it will suffice to say that the plaintiff tried the case on the theory that Quade, acting by the direction of his co-defendant, the milling company, was guilty of a wanton and willful trespass and assault upon the plaintiff by beating him with a stick, and, by frightening him by curses and threats of assault, caused him to fall from the ear and break his arm, and the instructions embodied the principle that although the plaintiff was a trespasser by playing in the car, the defendants had no right to use more force than was necessary to eject him, and if they did assault him and beat him with a stick, or by attempting to close the doors of the car and by curses and threats [30]*30of violence so frighten him as to canse him to fall from the car and break h-is arm, then plaintiff was entitled to recover. They are in the nsnal and proper form in such cases, except the instructions were entirely too long, a vice that circuit courts ought to discourage and discountenance.
For the defendant the court instructed the jury in the fifth instruction that the plaintiff was a trespasser and the defendants had a right to drive him out of the ear, and that if defendant, the milling company, through its employees, was using ordinary means to threaten the boys or scare them and was not guilty of any negligence in the means used and did not use any violence to plaintiff, but that plaintiff was frightened and scared and feared that he might be locked' up in the car, and in his effort to escape from the car he fell because of his fright, defendant was not responsible.
The plaintiff’s case was not founded on negligence. It was an action for trespass against his person, and although he was a trespasser in the car, this did'not justify defendant and its employees in assaulting him with a club, nor did it justify them in imprisoning him in the car, as Quade testified he was endeavoring to do, in order to turn him over to the police.
Although trespassers, these boys were guilty of no criminal offense, and there is- no evidence that they were. There was not even a suspicion that they were guilty of any criminal offense which would justify the defendant or its servants in imprisoning them, and when Quade admits that he was endeavoring to imprison the plaintiff and his companions in order to turn them over to the officials of the law, and in his effort to do this so frightened plaintiff, that in his effort to escape he fell and broke his arm he was guilty of an unlawful trespass against the plaintiff. His act was a wrongful and unlawful assault, and he and his principal were liable for the necessary and natural consequences of the unlawful effort to arrest him. The police officers would [31]*31not have been authorized to arrest plaintiff without a warrant for a misdemeanor not committed in their presence and it is not insisted there was the slightest suspicion that he had committed a felony.-. [State v. Holcomb, 86 Mo. 380, 381.] In our opinion the instruction was clearly erroneous in excusing the defendants for any injury which the plaintiff sustained in his effort to escape from'-a wrongful and unlawful arrest or .imprisonment which was about to be imposed upon him.
Before the defendants were justified in using force to remove plaintiff from the car, it was their duty to have first ordered him to leave and given him a reasonable opportunity to do so, and even then they could only use such force as was necessary for that purpose, and as plaintiff was a small boy, only twelve years old, and .Quade a grown man, his removal could easily have been effected without the use of a club and without imprisoning him in the car.
Moreover, the evidence of defendant Quade shows that his purpose was not to remove the boy from the car, but to imprison him in it, hence, all the preamble of this instruction in regard to the efforts of the defendant and its employees to keep the boys away from the cars and prevent their being hurt, is inapplicable to the issue tendered by plaintiff, which was a wanton assault and battery and an unlawful’ attempt to arrest plaintiff, and the answers were general denials,
This instruction five, as also the third, fourth, and sixth given for defendant, all in effect permitted the' jury to find for defendant if plaintiff was injured by his own contributory *negligence in getting out of the car. Contributory negligence is no defense to an unlawful and intentional assault, and all these instructions are erroneous to that extent. [Gray v. McDonald, 104 Mo. 313; Beach on Cont. Negligence, sec. 22; Morgan v. Cox, 22 Mo. 387; 1 Shearman and Redfield on Negligence (5 Ed.), sec. 64.]
[32]*32Defendant insists that plaintiff tendered the issue of negligence in his petition, and it is' trué that in the' second count the word “negligently” is used, hut it is so coupled with the words “wantonly, wrongfully, and unlawfully drove hy force and threats,” etc., that it is evident that the pleader was seeking to recover for a willful trespass and not a negligent act, and hence it was mere surplusage. Nor was the case tried on such a theory. It was tried as a willful and unlawful trespass to plaintiff’s person, and plaintiff’s instructions, are so limited.
The defendant’s instructions are contradictory of plaintiff’s and were erroneous. Besides, it was- improper to charge that defendant was authorized to drive the boy, a child only twelve years old, without requiring defendant to notify or order him out of the car and without limiting the amount of force that defendant might lawfully use. Instructions 3 and 6 for defendant assert in substance that if the plaintiff, frightened by Quade’s effort to imprison him and by his threats, in his efforts to avoid being shut up in the car and to avoid the threatened injury, jumped and fell or stumbled and fell, defendant is not liable. Besides containing the error of tendering plaintiff’s contributory negligence as a defense, its .effect was to mislead the jury into regarding it as entirely legal and proper for defendant to frighten the plaintiff by threats and by attempting to imprison him in the car and that if he was hurt by reason of such conduct defendant was not liable if the jury should find that as a matter of fact Quade did not strike him with the stick, though plaintiff and his companions all testified that he did. Considering the age of the plaintiff and his want of experience, and the uncontradicted facts that he had never been about the cars before that day, and the sudden closing of the south door of the car, and the appearance of Quade with a club, the facts tend strongly to prove at least an unlawful assault for which defendants are [33]*33liable even if Quade did not strike Mm with the stick wMch several disinterested witnesses testify he had in his hand when the boy fell ont of the car. We think the instructions for defendant were erroneous and were well calculated to induce the jury to bring in a verdict contrary to the law. The judgment of the circMt court in granting a new trial is affirmed.
All concur.