GrOODE, J.
1. Plaintiff’s petition states two ■distinct causes of action in a single count, one for damages on account of an assault and battery committed on him by the conductor and the motorman of amar of the defendant, on which he was a passenger at the time, and the other for his malicious arrest and prosecution at the instance of said servants, their action being subsequently ratified and indorsed by the defendant itself.
This was bad pleading and should have been corrected if defendant had made timely objection to it (Otis v. Mechanics’ Bank, 35 Mo. 128) but the motion to [278]*278require the plaintiff to elect on which cause he would go to trial was not made until after an answer had been filed joining issue on the allegations of the petition and the jury sworn to try the issues thus joined; which was too late, because such motions must be filed before pleading over and going to trial, or the misjoinder will be waived. Stevenson v. Judy, 49 Mo. 227; Wilson v. Railway, 67 Mo. App. (K. C.) 443; Snyder v. Parker, 67 Mo. App. (K. C.) 529.
2. We are of the opinion that the petition contains only one count and not two as the defendant says, the alleged second count being merely a paragraph in which a claim for punitive damages is put forward, based on certain acts of the defendant asserted to constitute a ratification and indorsement of the maltreatment of the plaintiff by the joint assault of the conductor and motorman, and of the subsequent malicious arrest and pros-, ecution. Said paragraph refers to the preceding portion of the petition in which those acts of the defendant’s employees were charged and avers that after defendant learned of them, it indorsed and approved them by retaining said employees and employing counsel to conduct their defense against a charge of assault and battery which plaintiff preferred. Punitive damages are demanded in this paragraph in addition to the demand for actual damages.
A fair interpretation of the petition, although it is extremely crude, is that it contains but one count in which two causes of action are embodied, and not two counts with two causes of action in each.
3. Appellant’s other assignments of error relate to rulings on instructions, and in dealing with these it should be stated that the case finally went to the jury only on the case for damages for the alleged assault, concerning which two theories were propounded, to-wit: one based on the testimony for the plaintiff, which went to show that as he was alighting from the car, the conductor resumed, by a provoking remark, a dispute which had previously arisen between him and the plaintiff in regard to plaintiff’s right to. a transfer, the result [279]*279being that he shoved plaintiff as the latter attempted to step from the ear platform, so that plaintiff would have fallen if his body had not struck against a man who was standing near the steps; whereupon plaintiff struggled with the conductor to keep from being thrown from the car, and a fight ensued during which the motorman rushed to the assistance of the conductor and struck the plaintiff over the head with the controller, a brass instrument weighing ten or twelve pounds and used in manipulating the car.
The other theory was based on testimony adduced by the defendant tending to prove that when the plaintiff came out on the platform of the car in order to alight, he grossly insulted the conductor; an altercation followed in the course of which the plaintiff first struck the conductor, thus bringing on a fight which attracted the attention of the motorman, who stepped forward, when the plaintiff assaulted him and he defended himself with his controller.
A more violent conflict of testimony is seldom found than exists in the record before us; and we, of course, can not adopt either theory as having been conclusively established by proof, but must defer to the verdict of the jury and concern ourselves with the correctness of the trial court’s rulings on the instructions.
The first instruction given for the plaintiff is criticised on the ground that it contains an inapplicable proposition of law; namely, that it is defendant’s duty to treat its passengers with respect and not subject them to insult or violence by its servants. But we think the proposition is applicable, because if the plaintiff’s testimony, that the conductor wantonly pushed him as he was about to step from the car, was true, plaintiff’s right to be treated with respect, and neither insulted nor assaulted by defendant’s servants while he was a passenger, was violated.
The instruction is also criticised for singling out as a basis of recovery, one of the two causes of action stated in the petition, which, says the defendant, the court had no right to do. This objection comes with [280]*280bad grace from the defendant, since it appears that at the close of the testimony for the plaintiff, its counsel asked the court to instruct the jury that he could not recover for the alleged arrest and prosecution, and the court did so instruct them, thereby excluding plaintiff’s right to recover on one of the causes of action stated, and sending him to the jury on the case for the assault and battery alone.
The instruction given on the measure of damages was as follows:
“If the jury find for the plaintiff, they will assess his damages at such sum as they shall believe from the evidence will be a fair compensation to him for all injury to his person and physical and mental pain and suffering, if any, caused him by the wrongful conduct of the defendant’s servants and agents as in these instructions set out. ’ ’
An objection urged to that charge is that it failed” to restrict the amount of damages which might be awarded to the sum demanded in the petition; but as' the demand was for five thousand dollars and the jury only awarded five hundred, the objection will be passed over without further comment.
Another criticism is that the charge stigmatized the conduct of defendant’s employees as wrongful, to the prejudice of its cause in the minds of the jury. The jury could not have gathered the notion that the court intended to instruct them that the employees had acted wrongly, because the other instructions to which they were referred, required them to find certain wrongful acts had been committed by defendant’s servants before they could award damages to plaintiff.
The fourth instruction requested by the defendant and refused was fully covered by one given at its request. Appellant says it was not covered, because the given one only touched the conductor’s right of self-defense and not the issue of whether plaintiff was a passenger or a trespasser at the time of the assault. The refused instruction was of the following import: if the plaintiff was pushed off the car by the conductor [281]*281and thereafter again got on for the purpose of assaulting’ the conductor, he became a trespasser and the defendant’s servants had the right to use such force as was necessary to expel him from the car. The one given told the jury that if the conductor pushed the plaintiff off the car and he again got on- and struck and assaulted the conductor, the latter had the right to use such force as was necessary to defend himself.
Defendant says it was material to have the jury told the plaintiff became a.
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GrOODE, J.
1. Plaintiff’s petition states two ■distinct causes of action in a single count, one for damages on account of an assault and battery committed on him by the conductor and the motorman of amar of the defendant, on which he was a passenger at the time, and the other for his malicious arrest and prosecution at the instance of said servants, their action being subsequently ratified and indorsed by the defendant itself.
This was bad pleading and should have been corrected if defendant had made timely objection to it (Otis v. Mechanics’ Bank, 35 Mo. 128) but the motion to [278]*278require the plaintiff to elect on which cause he would go to trial was not made until after an answer had been filed joining issue on the allegations of the petition and the jury sworn to try the issues thus joined; which was too late, because such motions must be filed before pleading over and going to trial, or the misjoinder will be waived. Stevenson v. Judy, 49 Mo. 227; Wilson v. Railway, 67 Mo. App. (K. C.) 443; Snyder v. Parker, 67 Mo. App. (K. C.) 529.
2. We are of the opinion that the petition contains only one count and not two as the defendant says, the alleged second count being merely a paragraph in which a claim for punitive damages is put forward, based on certain acts of the defendant asserted to constitute a ratification and indorsement of the maltreatment of the plaintiff by the joint assault of the conductor and motorman, and of the subsequent malicious arrest and pros-, ecution. Said paragraph refers to the preceding portion of the petition in which those acts of the defendant’s employees were charged and avers that after defendant learned of them, it indorsed and approved them by retaining said employees and employing counsel to conduct their defense against a charge of assault and battery which plaintiff preferred. Punitive damages are demanded in this paragraph in addition to the demand for actual damages.
A fair interpretation of the petition, although it is extremely crude, is that it contains but one count in which two causes of action are embodied, and not two counts with two causes of action in each.
3. Appellant’s other assignments of error relate to rulings on instructions, and in dealing with these it should be stated that the case finally went to the jury only on the case for damages for the alleged assault, concerning which two theories were propounded, to-wit: one based on the testimony for the plaintiff, which went to show that as he was alighting from the car, the conductor resumed, by a provoking remark, a dispute which had previously arisen between him and the plaintiff in regard to plaintiff’s right to. a transfer, the result [279]*279being that he shoved plaintiff as the latter attempted to step from the ear platform, so that plaintiff would have fallen if his body had not struck against a man who was standing near the steps; whereupon plaintiff struggled with the conductor to keep from being thrown from the car, and a fight ensued during which the motorman rushed to the assistance of the conductor and struck the plaintiff over the head with the controller, a brass instrument weighing ten or twelve pounds and used in manipulating the car.
The other theory was based on testimony adduced by the defendant tending to prove that when the plaintiff came out on the platform of the car in order to alight, he grossly insulted the conductor; an altercation followed in the course of which the plaintiff first struck the conductor, thus bringing on a fight which attracted the attention of the motorman, who stepped forward, when the plaintiff assaulted him and he defended himself with his controller.
A more violent conflict of testimony is seldom found than exists in the record before us; and we, of course, can not adopt either theory as having been conclusively established by proof, but must defer to the verdict of the jury and concern ourselves with the correctness of the trial court’s rulings on the instructions.
The first instruction given for the plaintiff is criticised on the ground that it contains an inapplicable proposition of law; namely, that it is defendant’s duty to treat its passengers with respect and not subject them to insult or violence by its servants. But we think the proposition is applicable, because if the plaintiff’s testimony, that the conductor wantonly pushed him as he was about to step from the car, was true, plaintiff’s right to be treated with respect, and neither insulted nor assaulted by defendant’s servants while he was a passenger, was violated.
The instruction is also criticised for singling out as a basis of recovery, one of the two causes of action stated in the petition, which, says the defendant, the court had no right to do. This objection comes with [280]*280bad grace from the defendant, since it appears that at the close of the testimony for the plaintiff, its counsel asked the court to instruct the jury that he could not recover for the alleged arrest and prosecution, and the court did so instruct them, thereby excluding plaintiff’s right to recover on one of the causes of action stated, and sending him to the jury on the case for the assault and battery alone.
The instruction given on the measure of damages was as follows:
“If the jury find for the plaintiff, they will assess his damages at such sum as they shall believe from the evidence will be a fair compensation to him for all injury to his person and physical and mental pain and suffering, if any, caused him by the wrongful conduct of the defendant’s servants and agents as in these instructions set out. ’ ’
An objection urged to that charge is that it failed” to restrict the amount of damages which might be awarded to the sum demanded in the petition; but as' the demand was for five thousand dollars and the jury only awarded five hundred, the objection will be passed over without further comment.
Another criticism is that the charge stigmatized the conduct of defendant’s employees as wrongful, to the prejudice of its cause in the minds of the jury. The jury could not have gathered the notion that the court intended to instruct them that the employees had acted wrongly, because the other instructions to which they were referred, required them to find certain wrongful acts had been committed by defendant’s servants before they could award damages to plaintiff.
The fourth instruction requested by the defendant and refused was fully covered by one given at its request. Appellant says it was not covered, because the given one only touched the conductor’s right of self-defense and not the issue of whether plaintiff was a passenger or a trespasser at the time of the assault. The refused instruction was of the following import: if the plaintiff was pushed off the car by the conductor [281]*281and thereafter again got on for the purpose of assaulting’ the conductor, he became a trespasser and the defendant’s servants had the right to use such force as was necessary to expel him from the car. The one given told the jury that if the conductor pushed the plaintiff off the car and he again got on- and struck and assaulted the conductor, the latter had the right to use such force as was necessary to defend himself.
Defendant says it was material to have the jury told the plaintiff became a. trespasser if he got back on the ear after being shoved off, because, if he was a trespasser, it is not liable in any event for an assault on him, a position we are unwilling to support; and it is plain that the fourth instruction was not drafted nor asked on any such theory.
The gist of the two instructions, as of the defense itself, is that if the plaintiff was off the car and got on again to fight the.conductor, the.latter had the right to use the necessary force to successfully resist, and it would have been superfluous for the court to inform the jury that when the plaintiff got back on the car he was a trespasser; for it was unimportant whether his status was that of passenger or trespasser if he began the affray in which he was injured, as the defendant asserts. It was sufficient if the jury .were told the conductor’s and motorman’s acts were lawful and the defendant was entitled to a verdict if he was the aggressor ; his being a passenger could confer oh him no right to create a disturbance or commit an assault.
The fifth refused instruction lays down a proposition of law in regard to when the defendant was entitled to decline to furnish plaintiff with a transfer, and was properly refused; because whether plaintiff should have been given a transfer or not, was no issue in the case.
The sixth instruction refused was that if the conductor put his hand on the plaintiff to shove him off the car, plaintiff had no right to use any greater force than was needed to prevent his being shoved off; that if the jury found the plaintiff struck the conductor or [282]*282threatened to assault him, such assault being unnecessary to plaintiff’s protection from being shoved off the car, then the conductor had the right to resist such threatened assault it if appeared there was imminent danger plaintiff would strike him, and plaintiff could not'recover for any injury he might have received from the conductor in resisting the conductor, providing the latter used no more force than was necessary. Several sound reasons may be given why that instruction was rightly refused. One is that the 'testimony for the plaintiff showed the conductor not only put his hand on the plaintiff to shove him off, but actually did shove him so that he would have fallen from the car if he had not struck against a man who was standing on the' ground. The phrase “put his hand on him to shove him off” is extracted from plaintiff’s testimony and, as used in the instruction, conveys an erroneous impression of what was the effect of the entire testimony to support the case. The instruction was bad, because it would have presented plaintiff’s case to the jury in a false and incomplete aspect by leaving out of view the general bearing of the testimony, as well as the motorman’s alleged tort in striking the plaintiff on the head with a dangerous weapon. Whatever merit it pos - sessed bore on the right of the conductor to defend himself against unwarranted violence on the part of plaintiff and was fully embraced in an instruction given at the defendant’s instance. The opposed theories of the litigants were well presented to the jury and the judgment is affirmed.
Bland, P. J., and Barclay, J., concur.