author: RAGLAND, C.

text:
    BESSIE McCOY v. WALTER BRADBURY, Appellant.
    Division One,
    December 19, 1921.
    1. WILL: Construction: Doubt and Uncertainty: Omission: Extrinsic Evidence. When, any doubt or uncertainty arises as to the testator’s intention, extraneous facts are admissible to explain the language used, regardless of the nature of the ambiguity, whether it be patent or latent; in every case the court is entitled to be placed in possession of all available information of the circumstances of the estate and family of the testator when he made his will, to the end that the court may be in his situation as nearly as may be, and may interpret and understand the will ap testator would were he living. But such extrinsic evidence is admissible solely for the purpose of ascertaining the testator’s intention from the language he used; it cannot be heard to show that he' meant one thing when he said another, or to show an intention not expressed in the will, nor to aid in making a will which he intended to make but did not in fact make; it cannot be heard to supply an omission; where the testator in plain language gave a specific legacy to eaeh of six daughters, extrinsic evidence cannot be heard to include .a seventh daughter not named, for such omission is not an ambiguity.
    2. — -: Bequest to Six Daughters: Failure to Mention Seventh: Necessarily Implied: Extrinsic Evidence. The testator, being the father of one son and seven daughters, gave his home place of two hundred and forty acres to his wife for life "and after my death said land to go to my son as hereinafter provided;” by the third clause, he gave six hundred dollars to eaeh of five daughters and seven hundred to another, naming them, but failed to name plaintiff; and in the fourth clause he provided that upon the death of his wife the son "is to pay as an additional legacy to eaeh of my daughters above named or their heirs the sum of four hundred dollars” and that "when he shall have paid the several legacies herein • charged against the home farm and after the termination of my wife’s death, he is to become the absolute owner of said farm, it being the intention of this will that there shall be charged against said real estate the sum of seven thousand and one hundred dollars, ■which is to be paid to said daughters as hereinbefore set out, one thousand dollars to each of them except” the one to whom seven hundred had been previously given “who is to receive eleven hundred dollars.” Held, that the will did not by implication provide a bequest of one thousand dollars to the unnamed daughter, the plaintiff; that it omitted to name or make a provision for her; that the testimony of the scrivener that testator “wanted to make a charge against the land to take care of his daughters” was not competent to supply the 'omission; that the use of $7100 in the calculation instead of $6100 — the aggregate amount of the bequests — did not create an ambiguity, but was a mere inaccuracy; and that testator died intestate as to said daughter, and the wife being dead, she is entitled to a one-eighth interest in the land.
    3. -: Gift by Implication. A bequest by implication will not be inferred from mere silence, or from extrinsic facts; it must be founded on expressions in the will itself. 3?rom a recital that it is “the intention of this will that there shall'be charged against ' said real estate the sum of $7100, which is to be paid to my said daughters as hereinbefore set out, one thousand to each of them except Birdie Learning who is to receive the sum of eleven hundred,” only six daughters having previously been named, a bequest of one thousand dollars to an unnamed daughter cannot be implied, although the specific bequests aggregate only $6100; ,to* imply from such recital an intention to bequeath one thousand dollars to the unnamed daughter -would be pure conjecture. A testamentary intention not found in the will cannot be incorporated therein by extrinsic evidence and then an implication be based on such extrinsic evidence.
    Appeal from Jasper Circuit Court. — Hon. J. D.Perkins, Judge.
    Affirmed.

      McReynolds & McReynolds and John H. Flanigan for appellant.
    . (1) The court should have admitted the testimony of the witness Allen McReynolds, because where there is a patent ambiguity on the face" of a will as in this case, parol evidence is competent to explain it. Willard v. Darrah, 168 Mo-. 660; Creasy v. Alverson, 43 Mo. 13; Rigg’s v. Myers, 20 Mo. 239; McMahon y. Hubbard, 217 Mo. 624, 118 S. W. 481; Griffith v. Witten, 252 Mo. 627; 161 S. W. 709; Gordon v. Burns, 141 Mo. 602; Mudd v. Cunningham, 181 S. W. 386; 40 Cyc. 1436; (2) The court erred in holding that J. N. Bradbury died intestate as to plaintiff, because it appears from the whole will that the plaintiff was remembered and impliedly provided for. R. S. 1909, sec. 544, R. S. 1919, sec. 555; 40 Cyc. 1407-1409; Cox v. Jones, 229 Mo. 53, 129 S. W. 495; Robards v. Brown, 167 Mo. 447; 40 Cyc. 1409,1410,1413, 1415; Willard v. Darrah, 168 Mo. 660; Mudd v. Cunningham, 181 S. W. 386; Griffith v. Witten, 252 Mo. 627, 161 S. W. 709; Guitar v. Gordon, 17 Mo. 408; Bradley v. Bradley, 24 Mo. 311; Beck v. Metz, 25 Mo. 70; Hocken-smith v. Slusher, 26 Mo. 237; McCourtney v. Mathes, 47-Mo. 533; Pounds v. Dale, 48 Mo. 270; Wetherell v. Hams, 51 Mo. 65; Thomas v. Black, 113 Mo. 67; Wood.v-Drake, 135 Mo. 393; Fugitt v. Allen, 119 Mo. App. 183; Myers v. Watson, 234 Mo. 286. (a) On the theory of implied bequest the will should stand as to the plaintiff. 40 Cyc. 1391, note 6; Smith v. Smith, 77 Atl. 975, 31 L. R. A. (N. S.) 922; Porter v. Trust Co., 108 N. E.. 117; Calloway v. Calloway, 188 S. W. (Ky.) 410. (b) The testator by clause fourth having himself interpreted the will, the court should follow that interpretation and sustain the will. Small v. Field, 102 Mo. 129; Reinders v. Koppléman, 94 Mo. 343; Re McVeigh's Estate, 181 Mo. App. 566, 164 S. W. 673. (3) The findings and judgment upon the whole record are for the wrong party, and the court should have sustained the will because the legal presumption is against intestacy, and under the general rules of law governing interpretation of wills this will sufficiently provides for the plaintiff. Parker v. Tootal, 11 H. L. Cases, 143; Riverside Trust Co. v. Rogers, 96 Atl. 181; 40 Cyc. 1407, 1409, 1410; Willard v. Darrah, 168 Mo. 660; Mudd v. Cunningham, 181 S. W. 386; Griffith v. Witten, 252 Mo. 627, 161 S. W. 709; Cox v. -Jones, 229 Mo. 53, 129 S. W. 495; Robards v. Brown, 167 Mo, 447; 40 Cyc. 1413-1415,

      Howard Gray for respondent.
    (1) No error was committed by the trial court in its rulings on the admission of the testimony of Allen McReynolds. The objection was not to the effect that Mr. McReynolds could not testify at all in the case, but was limited to the testator’s declarations as to whom he wanted to have his property and who his children were. The testimony was not admissible. Bradley v. Bradley, 24 Mo. 312; Gregory v. Cowgill, 19 Mo. 415; Thomas v. Black, 113 Mo. 68; Riggs v. Myers, 20 Mo. 243; Romine v. Haag, 178 S. W. 147; McMahon v. Hubbard, 217 Mo. 640; Snyder v. Tbley, 179 Mo. App. 376. (2) Appellant’s point as to the admission of this testimony is plainly stated, as follows: “Where there is a patent ambiguity on the face of a will as in this case, parol evidence is competent to explain it. ” We deny that this is the law. While appellant has cited a long list of eases in support of his point, we deny that they sustain him. Such testimony is admissible only in cases of latent ambiguity.' None of the cases cited sustain the point, but all of them announce the doctrine that declarations of the testator are not admissible to explain a patent ambiguity. (3) There is no ambiguity of any kind in the will. There may be an inaccurate statement as to the amount of money necessary to meet the specific legacies, but this is not an ambiguity. Riggs v. Myers, 20 Mo. 239. (4) The respondent is not named in the will of her father and neither is she provided for therein, and therefore as to her he died intestate. Thomas v. Black, 113 Mo. 68; Williamson v. Roberts, 187 S. W. 19; Pounds v. Dale, 48 Mo. 270; Hargadine v. Pulte, 27 Mo. 423; Wetherell v. Harris, 51 Mo. 65; Myers v. Watson, 234 Mo. 286; Lewis v. Reed, 182 S. W. 638. It is conceded that the respondent is not named in her father’s will, and therefore under the rule established in Thomas v. Black, supra, the presumption is that she was unintentionally omitted, and while this presumption may be rebutted, it must appear on the face of the will. (5) There is not a word in the will which indicates that if he had remembered his daughter he would have given her just the one thousand dollars; and when we say by this will he intended to give her one thousand dollars because when he has summed up the total legacies they amount to one thousand dollars more than the amount necessary to satisfy the legacies specifically mentioned, we are simply speculating. There is just as much reason for saying that in adding; up he missed the total by one thousand dollars as there is in saying that the one thous- and dollars was for the respondent. The appellant’s whole case is based on mere conjecture.
   RAGLAND, C.

Plaintiff, claiming an undivided one-eighth interest in two hundred and forty acres of land in Jasper County, of which her father, J. N. Bradbury, died seized on the day of —, 1917, sues for partition. Bradbury left surviving him one son and seven daughters as follows: defendant Walter Bradbury, plaintiff Bessie McCoy, Clara Bradbury, Birdie Learning, Della Bradbury, Daisy Bradbury, Alphah Bradbury and Nina Bradbury. His will was duly admitted to probate. The part of it relevant to this controversy is as follows:

“Second. I wish and desire that my beloved wife, Alice Bradbury, during her natural life, may receive the benefit of my farm in Jasper County, Missouri, and to that end and to the end that the family home may be kept intact, I give and bequeath to my wife, my farm of two hundred and forty acres in Jasper County, Missouri, for and during her natural life, after her death said land to go to my son as hereinafter provided.
“Third. To my son Walter Bradbury, I give, devise and bequeath all of my real estate situated in Jasper County, Missouri, and especially my two hundred and forty (240) acre farm situated in said county, subject to all of the rights of his mother, Alice Bradbury, as hereinafter provided; also subject to the payment of legacies to my beloved daughters, to-wit: Clara Bradbury, the sum of $600; Birdie Learning, wife of Carl Learning, the sum of $700; to my beloved daughter Della Bradbury, the sum of $600; to my beloved daughter Daisy Bradbury, the sum of $600; to my beloved daughter Alphah Bradbury, the sum of $600 and to my beloved daughter Nina Bradbury, the sum of $600. These several sums to be paid to my several daughters as follows: To those of age at the time of my death they are to be paid in cash at the earliest date practical after my decease. Those not. of age at the time of my death are to be paid their respective legacies as they each become of age.
“Fourth. In addition to the bequests made in the last preceding paragraph, upon the death of my wife or upon the event of her decease prior to my own, my son Walter Bradbury is to pay as an additional legacy to each of my daughters above named or to their heirs, the sum of four hundred dollars ($400) in cash; and when he shall have paid the several legacies herein charged against the home farm of two hundred and forty (240) acres, and after the termination of my wife’s interest by her death, then he is to become the absolute owner of said farm, it being the intention of this* will that there shall be charged against said real estate the sum of seven thousand and one hundred dollars ($7,100) as set out in paragraph four (4) and five (5) of this will, which is to be paid to my said daughters as hereinbefore set out, one thousand dollars ($1000) to each of them except Birdie Learning who is to receive the sum of eleven hundred- ($1,100) and after the payment of said sum and the death of my wife, the said two hundred and forty acres of land in Jasper County, Missouri, is to become the property of my son, Walter Bradbury.
“Fifth. I hereby will and bequeath to my beloved wife, Alice Bradbury, all of the personal property upon my farm, which is to be hers to use or dispose of as she may think best after the payment of my debts and funeral expenses as provided for in paragraph one (1) of this will.”

The testator’s wife, Alice Bradbury mentioned in the will, predeceased him. Plaintiff claims that her father died intestate as to her, because she is not named or provided for in his will. Defendant insists that while she is not expressly named she is provided for therein. On the trial the defendant introduced as a witness the scrivener who prepared the will. Subject to plaintiff’s objection the witness testified as follows:

“I think I can state subject to Judge Gray’s objection all I remember about that. I recollect Mr. Bradbury’s coming very definitely because Mr. Bradbury and I had had some very spirited exchanges over the road business. Pie entertained certain views and I certain views. He had come to my office quite frequently previous to that time. When he come it was a little bit of a surprise and we went into the library and sat down. I remember going in there and discussing the will and he gave me the data. I don’t remember about the specific daughters, I don’t remember the names. I remember he told me about there being only his one son and the daughters and that he wanted the son to have the land. He wanted to make a charge against the land.. He wanted to make a charge against the land to take care of his daughters. ' I remember we calculated the amount and put that in. I have no definite recollection of the names of the individuals at all or the specific part of it in that way. I remember the will was drawn up and Miss Dean and I acted as witnesses, and I remember about Mr. Bradbury signing it. I don’t remember about the reading of it. I remember he wore glasses and I had seen him use them before. That, as near as I can recollect, is the substance of what transpired there at the time I drew the will. It is too long ago for me to have any definite recollection about any detail.”

At the conclusion of the trial the court sustained plaintiff’s objection to this testimony and it was stricken out. Other evidence showed that at the time the will was written plaintiff was a minor living in her father’s home, and that no estrangement of any kind had ever existed between ber and her father. She was not Ms only minor daughter, however. The finding and judgment were for plaintiff, and defendant appeals.

Appellant' insists that the trial court was in error (1) in striking out the testimony of the scrivener, and (2) in not holding that a bequest of $1000 to plaintiff was necessarily implied from the language of the will when read and considered as a whole, in the light of all the facts and circumstances attending its making.

I. A reading of the will makes it very plain that plaintiff is not named individually, nor is there a clause provided for therein which includes her. The first reference to testator’s daughters occurs in paragraph “third” in this language: “to my beloved daughters to-wit.” The names of six, which do not include that of the plaintiff, immediately follow, with a designation of the precise sum each is to receive. “These several sums,” it next recites, “to be paid my several daughters as follows.” Paragraph “fourth” provides for an additional legacy of $400 “to each of my daughters above named or to their heirs.” The latter part of the paragraph then recites, “It being the intention of this will that there shall be charged against said real estate the sum of seven thousand and one hundred dollars ($7100) as set out in paragraph four (4) and five (5) of this will, which is to be paid to my said daughters as hereinbefore set out, one thousand dollars to each of them except Birdie Learning who is to receive the sum of eleven hundred dollars.” All of this language with reference to the daughters of the testator who were provided for in the will is specific and exclusive. This situation appellant would overcome by reading into, or in connection with, the will the declaration made by the testator at the time it was written namely: “He wanted to make a charge against the land to take care of Ms daughters.” And this brings us to appellant’s first contention.

It is the general rule that when any doubt or uncertainty arises as to the testator’s intention extrinsic facts are admissible to explain the language of the will, regardless of the nature of the ambiguity, whether it be patent or latent. In every case the court is entitled to be placed in possession of all the information which is available of the circumstances of the estate and family of the testator when he made his will, to the end that the court may be in his situation as nearly as may be, and may interpret and understand the will as he would if he were living. [2 Underhill on Wills, sec. 910; Willard v. Darrah, 168 Mo. 660, 668; Cox v. Jones, 229 Mo. 56, 62.] But such intrinsic evidence is admissible solely for the purpose of ascertaining the testator’s intention from the language he has used. It cannot be heard to show that he meant one thing when he said another, or to show an intention not expressed in the will itself, or to aid in making a will which „the testator intended to make, but did not in fact make. However clearly an intention not expressed in the will may be proved by extrinsic evidence, the rule of law requiring wills to be in writing stands as an insuperable barrier against carrying the intention thus proved into execution. [28 R. C. L. sec. 243.]

In the will under consideration the testator in plain and unambiguous language gave a specific legacy to each of six daughters whom he named; there is no reference any where in the will, expressly or impliedly, to any other daughter. The oral declaration of intention that appellant would incorporate in the will would operate merely to enlarge its provisions so as to include therein all of testator’s daughters instead of the six named. This under the principles stated in the preceding paragraph is not permissible.

There was no latent ambiguity shown, nor does any doubt or uncertainty arise on the face of the will. There can be no question with respect to the property that is the subject of disposition therein, nor as to the identity of the persons to whom it was given. The testator in clear and unequivocal language devised a life estate in land Avhich is definitely described to his wife, gave to eacli of six daughters whom lie named a specific legacy, which legacies he expressly charged against the land, and subject to such life estate and legacies he devised the land in fee to his son. Following this plain and explicit disposition there is a recital to the effect that it was the intention of the testator to place a charge of $7100 against the land to be paid to his ‘‘said daughters as here-inbefore set out.” The sums thereinbefore set out and again repeated, in effect, aggregated only $6100, but the use of ‘.‘$7100” instead of $6100 did not create an ambiguity. It was a mere inaccuracy. [Riggs v. Myers, 20 Mo. 239.] Upon reading the will one would inevitably conclude that the designation of the charge against the land as $7100 was simply a miscalculation or inadvertence. As such it would have no influence whatever upon the interpretation of the will, that is, the ascertaining of the testator’s intention with respect to the disposition of his property. Where the testator, as in this case, employs language that is clear, definite and incapable of any other meaning than that which is obviously conveyed by the-words used, there is no reason for resorting to evidence of extrinsic facts in order to ascertain his meaning.

We are of the opinion that the testimony of the scrivener could serve no legitimate purpose in the construction of the will and that the court was not in error in striking it out.

II. Appellant insists that the will provides a bequest of $1000 to plaintiff by implication. If there were any expressions in the will which showed that the testator had seven daughters or other daughters than expressly named and that he intended a charge of $7100 against the land devised as a provision for all of them, the insistence would no doubt be valid. But a gift by implication will not be inferred from mere silence, or from extrinsic facts; it must be founded on expressions in the will itself. A testamentary intention not found in the will cannot be incorporated therein by extrinsic evidence and an implication then based on that.

In Crane v. Doty, 1 Ohio St. 279, it is said:

“In order to raise an estate by implication, the two following circumstances must concur: -First - an interest or estate in the property less than the whole, must be created expressly by the will, in order that it may appear that the testator had the disposition of the property in his mind. Second; the person to take by implication, must be named or described in connection with the raising of such interest or estate.”

The only possible expression in the will on which to hypothecate the implication contended for is the recital that it was the intention of the testator to charge the land with $7100 for the purpose of paying the six specific legacies thereinbefore provided for which amounted to only $6100. That he intended the difference between $7100 and $6100 as a gift to the daughter not named or in any way referred to in the will does not rise to the dignity of an implication; it is pure conjecture. [Pounds v. Dale, 48 Mo. 270, 272; 40 Cyc. 1390.] Although we might reach the conclusion from the extrinsic evidence that the testator intended that $1000 of the amount charged against the land should be paid to his daughter, the plaintiff, still we could not make for him the will he intended to make but did not in fact make. [Calloway v. Calloway, 188 S. W. (Ky.) 410.]

We concur with the learned trial court in holding that the plaintiff was not named or provided for in her father’s will within the meaning of Section 544, Revised Statutes 1909, and that, therefore, he,died intestate as to her.

It follows that the judgment must be affirmed. It is so ordered.

Small, C., concurs; Brown, C., absent.

PER CURIAM: — The foregoing opinion of Rag-land, C., is adopted as the opinion of the court..

All of the judges concur, except Woodson, J., not sitting.


source: Caselaw Access Project

author: ELDER, J.

license: Public Domain

text:
    THE STATE ex rel. MOSES MANN v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals, and ALBERT CORNELIUS.
    Division One,
    December 19, 1921.
    1. CERTIORARI: To Court of Appeals: Conflict With Other Decisions of Courts of Appeals. In a certiorari to a court of appeals, based on a conflict of its opinion with previous controlling decisions of the Supreme. Court, any alleged conflict between said opinion and other decisions of courts of appeals will be disregarded.
    2. MALICIOUS PROSECUTION: Instruction: Mandatory Direction for Punitive Damages. In an action for damages for malicious prosecution, an instruction telling the jury that “if you should find the issues for the plaintiff you may take into consideration in estimating his damages and award him such sum as will compensate him for mental anxiety, . . . together with such sum as you may, from the evidence, believe the defendant should be punished with, ’ ’ was not a mandatory direction to award punitive damages, and the opinion of the Court of Appeals approving said instruction was not therefore in conflict with the decision in Nicholson v. Rogers, 121 Mo. 1. e. 141, in which the question of actual or express malice was not present.
    3. -: -: Dismissal of Information: Persuasive Evidence of Lack of Probable Cause. ' In an action for damages for malicious prosecution, where the plaintiff had been arrested for petit larceny at the instigation of defendant and the case subsequently dismissed, an instruction telling the jury, among other things, that “the issue is whether from the facts and circumstances given in evidence the defendant aeted maliciously and without probable cause, and on this issue you are further instructed that the discharge of the plaintiff or the dismissal of ' the'inf ormation by the prosecuting attorney is evidence that the prosecution -was without probable cause, but not conclusive of the fact,” is not in conflict with Smith v. Burrus, 106 Mo. 1. e. 99, for the reason that the dismissal of the suit there involved was a civil action for slander, and upon certiorari the Supreme Court is only concerned with whether the Court of Appeals, upon the facts stated in its opinion, announced some conclusion of law contrary to the last previous Tuling of the Supreme Court upon the same or a similar state of facts. But however the doctrine was announced in the said ease of Smith v. Burrus, the opinion of the Court of Appeals approving said instruction was not contrary to the last previous ruling of the Supreme Court, for it was held in the recent case of Hanser v. Bieber, 271 Mo. 326, that the acquittal of a plaintiff in the criminal prosecution constituted "persuasive evidence of a want of probable cause," and if an acquittal is such, a dismissal of a criminal information . is more so.
    4. -: -: Definition of Probable Cause: Cautious Person: Cured, by Others. In an action for damages for malicious prosecution an instruction telling the jury that ‘' by . probable eause is . meant a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his’ belief that the accused is guilty of the offense of which he is charged” is not a wrongful definition of probable eause, and is not in conflict with Boeger v. Langenberg, 97 Mo. 1. c. 396, but if it were its counterpart was approved in the later ease of Pugate v. Miller, 109 Mo. 1. c. 285, 290, and therefore the Court of Appeals did not contravene the rule in approving it. The use of the word "cautious” instead of "reasonable and cautious” was not a substantial or material difference, but even if said qualifieaton of the word “cautious” was necessary it was supplied, as ruled by the ■ Court of Appeals, by an instruction asked by defendant which defined probable eause as such circumstances as would induce such belief in the mind of an “ordinarily reasonable and cautious person,” etc.
    5. -: Larceny: Replevin as Evidence: No Exception. In an action for damages for malicious ■ prosecution, where the plaintiff had in a replevin suit recovered the property which he was charged in the criminal information with having stolen, wherein the petition was filed after the issuance of said information, a statement in its opinion by the Court of Appeals that no exception was saved to , the ruling of the trial court admitting in evidence the judgment in the replevin suit, precludes a consideration on certiorari of the question whether said ruling was error, and also precludes a consideration of the further question whether said opinion was in conflict with certain prior decisions of the Supreme Court in which relator contends it was decided that such judgment was not admissible.

      Certiorari.

    WRIT QUASHED,

      Randolph & Randolph, Dudley, Selby & Brandom and Hewitt & Hewitt for petitioner.
    (1) Instruction No. 10 given for tlie plaintiff is in conflict with Nicholson v. Rogers, 129 Mo. 141; Ruth v. St. Louis Transit Co., 98 Mo. App. 18; Bosch v. Miller, 136 Mo. App. 493. That instruction is a direction to the jury to award both actual and punitive damages and is clearly in conflict with the authorities cited. (2) Instruction No. 9 is clearly in .conflict with Smith v. Burrus, 106 Mo. 99. In that case the court said: “And the mere discontinuance of a criminal prosecution, or the acquittal of the accused, will establish for the purpose of this suit neither malice nor want of probable cause.” The instruction is also in conflict with Eckerle v. Higgins, 159 Mo. App. 186. In the face of those decisions, Instruction No. 9 told the jury that the dismissal of the information by the prosecuting attorney was evidence that the prosecution was without probable cause. (3) Instruction No. 2 is clearly in conflict with Boeger v. Langenberry, 97 Mo. 396, and Wilkerson v. McGhee, 153 Mo. App. 1. c. 349. (4) The judgment in the replevin suit of Mann v. Cornelius, a case that was tried after the arrest, is held by the Court of Appeals to be competent evidence in the case. The replevin suit was a subsequent adjudication, had not been -begun when the arrest was made, and the case should rather have been submitted upon the question as to whether or not the tank belonged to the real estate, and as to whether or not the defendant under all th<? facts and circumstances was justified in believing that' the tank belonged to him. That ruling is clearly in conflict with Carp. v. Ins. Co., 203 Mo. 295, 338; Vansickle v. Brown, 68 Mo. 627, 632;, Kennedy v. Holloway, 25 Mo. App. 514.

      L. W. Reed, Thos H. Hicklin and Scott J. Miller for respondent.
    (1) The instructions in the Nicholson case absolutely direct a verdict for punitive damages and this in plaintiff’s instruction is certainly left to the discretion of the jury. Instruction No. 10 was copied from the case of Fugate v. Millar, 109 Mo. 278. (2) The next instruction criticised by the petitioner is No. 9 given on behalf of plaintiff as being in conflict with Smith v. Burrus, 106 Mo. 99. In the case of Williams v. Yan Meter, 8 Mo. 339, it is held at page 342, “that the acquittal of plaintiff in the cause for which he was bringing suit for malicious prosecution was proper evidence to go to the jury on the question of want of probable cause, but that of itself and unaccompanied with any circumstances would be insufficient, and the Williams case is approved and quoted from in the recent case of Hanser v. Bieber, 271 Mo. 342, where it is held that such evidence is competent, and which expressly approves the opinion in Christian v. Hannah, 58 Mo. App. 37, holding to ’the same effect; that is, that evidence of the acquittal or discharge of defendant in the suit on which the malicious prosecution case is based is competent evidence of lack of probable cause. The above cases hold and we believe it is unquestionably the law of this State that testimony as to the acquittal of plaintiff in this case, defendant in the larceny case on which this suit is based, was competent evidence to go to the jury on the question of lack of probable cause. (3) Next petitioner complains that plaintiff’s Instruction No. 2 is in conflict with Boeger v. Langenberry, 97 Mo. 393-7, and the case of Wilkerson v. McGhee, 153 Mo. App. 349, and seems to base most of their complaint on the fact that Instruction No. 2 employs the language in defining’ probable cause “a cautious man” while in the Boeger-Langenberry Case the words “a person of ordinary prudence” is used and in the Wilkerson-McGhee Case the words “reasonable and cautious man” is used. The case of Fugate v. Miller, 109 Mo. 285, uses,the words “a cautious man,” the same as does this instruction, and being a later case than that of Boeger v. Langenberry, supra, the Court of Appeals probably followed it. (4) And lastly, petitioner complains that the judgment in the replevin suit of Mann v. Cornelius was held to be competent evidence in the case by tbe Court of Appeals and cited authorities to show that it was not. Petitioner here on the trial strenuous-. 1 y objected to the introduction of the records of the replevin suit; after his objections were overruled and the record admitted in evidence, he failed to save any exceptions to the ruling of the court, hence was in no position to raise the question in the Court of Appeals and is not now in such position in this court.
   ELDER, J.

Relator seeks by writ of certiorari to review the opinion of the Kansas City Court of Appeals and quash the judgment entered by that court affirming a judgment for $750 actual and $250 punitive damages rendered by the Circuit Court of Dekalb County in an action for damages for malicious prosecution brought by one Albert Cornelius against Moses Mann (relator herein).

The evidentiary facts in the case are thus stated in the opinion of the Court of Appeals:

“Defendant caused an information to be filed in the Circuit Court of Daviess County by the prosecuting attorney of that county, charging plaintiff with stealing a ‘ steel tank of the value of $17.50. ’ A warrant was issued and plaintiff arrested. The case was thereafter dismissed, and plaintiff thereupon broug'ht this action for malicious prosecution and obtained judgment for both actual and punitive damages.
“It appears that plaintiff bought a farm from defendant, principally on deferred payments. A steel water-tank was on the place, so situated in a fence as to form a part thereof and so arranged- as to be a facility in watering stock. After occupying the farm for two years it became apparent that he could not pay for it, and he re-sold or deeded it back to defendant, remaining in possession another year as defendant’s tenant. When plaintiff had taken possession after his purchase of the farm, defendant came to him and told him which of several articles of property did or did not go with, the farm under the deed. Among other things he told him the tank did not, but that he would give it to plaintiff, and the latter kept and used it. When plaintiff’s year as defendant’s tenant expired he moved to a place he had rented, which was about ten miles away in another county, and he took the tank now in controversy with him. It was this taking that defendant claimed was the asportation which he called the theft of the tank, and upon which he based his instigation of the prosecution.
“Shortly after plaintiff was arrested defendant instituted an action of replevin for the tank in the county to which it had been taken by plaintiff. The final result of these actions, civil and criminal, was that the former was decided for this plaintiff and the latter was dismissed.
“There was evidence tending to show that before making affidavit to the information filed against plaintiff, defendant laid the facts before the prosecuting attorney and he advised that a crime had been committed. ’ ’

Relator assigns as error: (a) The giving of four certain instructions for plaintiff, which are claimed to be in conflict with controlling decisions of this court, and (b) the admission in evidence of the judgment in the replevin suit mentioned in the opinion, contrary to previous ruling's of this court. These alleged errors we shall discuss seriatim. In view, however, of our well established rule to disregard, on certiorari, any alleged conflict with opinions of the several Courts of Appeal, we shall not advert to the decisions of Courts of Appeal cited by relator in behalf of the relief sought.

I. With reference to the instructions, the Court of Appeals, in its opinion, has the following to say:

“A number of instructions were given by the trial court for each party and a number offered by defendant were refused. Complaint is mafe of the action of the court in giving those for plaintiff and in refusing those refused for defendant. All-told there were eighteen or twenty given, and there were eight refused for defendant;
“Those given for plaintiff properly covered every phase of a case of this nature. Malice and probable cause are defined, and so is defendant’s duty in seeking the advice of the prosecuting attorney as to the guilt of plaintiff; and to these was added a definition of petit larceny as applied to the taking of the water tank. [Fugate v. Millar, 109 Mo. 281.]
“Those given for defendant were the converse of those for plaintiff, and were made applicable to those matters of defense which would authorize and make necessary a verdict for defendant. There can be no doubt that taking all the instructions together as a series (Fugate v. Miller, supra) they put the case for both sides in such way as to leave no room for misunderstanding by the jury.
“There is much in those refused which is found in those given and there was no necessity for repeating.
“All in those refused which was proper was included in instructions given.”

Relator contends that Instruction No. 10 is in conflict with Nicholson v. Rogers, 129 Mo. l. c. 141, for the' reasons that the instruction “is a direction to the jury to award both actual and punitive damages,” that “the jury must first find actual or express malice before they may in their discretion award punitive damages,” and that “punitive damages are furthermore entirely in the discretion of the jury.” Instruction No. 10 is as follows:

‘ ‘ The court instructs you that if you should find the issues for the plaintiff yo-u may take into consideration in estimating his damages, and award the plaintiff such sum as will compensate him for mental anxiety, occasioned by reason of said charge, and for mental suffering occasioned by said arrest, if you believe such was the case; together with such damages as you may, from the evidence, believe the defendant should be punished with, taking also into consideration the defendant’s ability, his position in society, his standing in the community, not, however, exceeding the amount sued for, seven thousand five hundred dollars ($7,500).” A scrutiny of the instruction held erroneous in Nicholson v. Rogers, supra, discloses that it read in part as follows:
“The jury must assess such an amount of damages in his behalf as they may deem proper under the view of the whole case to compensate him for the mortification and shame he may have suffered, ... as well as to punish the defendant for his wrongful and malicious conduct.” (Italics ours).

As the court there said, “the instruction undoubtedly directs the jury, as though defendant was entitled to punitory damages as a matter of legal right.” Such instruction was clearly mandatory. But the instruction under review is not mandatory. The language is, “If you should find the issues for the plaintiff you may take into consideration . . . together with such damages as you may, from the evidence, believe the defendant should be punished with,” etc. Manifestly the jury were left free to exercise their discretion.

The question af actual or express malice not being present and having not been ruled on in the Nicholson 'case, there can be no conflict with the opinion of the Court of Appeals on that score.

The point made must accordingly be ruled against relator.

II. Relator next urges that Instruction No; 9 is in conflict with Smith v. Burrus, 106 Mo. 99, for the reason that the instruction told the jury that “the dismissal of the information by the prosecuting attorney was evidence that the prosecution was without probable cause.” Instruction No. 9 is as follows:

“The court instructs the jury the issue for them to try in this case is not the guilt or innocence of Albert Cornelius of the crime alleged against him in the affidavit, but the issue is whether from the facts and circumstances given in the evidence the defendant acted maliciously and without probable cause, and on this, issue you are further instructed by the court that the discharge of the plaintiff or the dismissal of the information by the prosecuting attorney is evidence that the prosecution was without probable cause, but not conclusive of that fact.”

“While the case cited would at first impression seem to substantiate relator’s insistence, nevertheless, a further investigation serves to demonstrate its unavailability. The reasoning of the rule there announced is predicated upon an extract from Cooley’s Law of Torts, reading in part; “And the mere discontinuance of a criminal prosecution, or the acquittal of the accuse'd, will establish for the purposes of this suit neither malice nor want of probable cause.” However, this doctrine is in part contrary to our most recent pronouncement in Hanser v. Bieber, 271 Mo. 326, where Walker, J., upon a thorough review of the cases bearing upon the subject, speaking for the court, said, at page 342: “Holding, as we do, that the judgment of conviction here does not constitute-probable cause, it follows that the acquittal of the plaintiff in the Court of Criminal Correction constituted, under our rulings, persuasive evidence of luant of probable cause,” citing several prior decisions so holding. (Italics ours). Hence, if an acquittal is persuasive evidence of want of probable cause, by a parity of reasoning the same rule should apply upon tlie dismissal of a criminal information. The ensuing conclusion, therefore, is that the instruction complained of by relator is in harmony with our latest and controlling decision.

Furthermore, it cannot be said that the instruction is in conflict with the Smith case, supra, for the reason that the dismissal of the suit there involved was a civil action for slander instead of a criminal proceeding as here, and, as we have often ruled, on certiorari to the Courts of A.ppeal we are only concerned with whether upon the facts stated in its opinion, the Court of Appeals announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar state of facts. [State ex rel. American Packing Co. v. Reynolds, 287 Mo. 697; State ex rel. Peters v. Reynolds, 214 S. W. l. c. 122; State ex rel. Mechanics Amer. Natl. Bank v. Sturgis, 208 S. W. l. c. 462; Majestic Mfg. Co. v. Reynolds, 186 S. W. 1072.]

III. Relator further insists that Instruction No. 2 is in conflict with Boeger v. Langenberg, 97 Mo. l. c. 396, 397. Instruction No. 2 is as follows:

“By probable cause is meant ‘a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man belief that the accused is guilty of the offense with which he is charged.’ ‘Malice’ means a wrongful act done intentionally, without legal justification or excuse.”

Probable cause, as relied upon by relator, is thus discussed and defined in the Boeger case, supra: “A definition of probable cause sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. The complete legal idea expressed by that term is not to be gathered from a mere definition. But, perhaps, with reference to many practical cases, it may be nearly accurate to say that, probable cause consists of a belief in the charge or facts alleged, based on sufficient circumstances to reasonably induce such belief in a person of ordinary prddehce in tlie same situation.”Relator’s particular objections to the instant instruction, and the comment of the Court of Appeals thereon, are thus expressed in a supplemental opinion of the court, rendered upon a rehearing granted in the case:

“Instruction No. 2, defining probable cause, is objected to on the ground that it prescribes too strong a test of defendant’s belief in plaintiff’s guilt, when he begun the prosecution. The particular complaint is that the instruction declares that to justify a belief in plaintiff’s guilt the circumstances must be ‘sufficiently strong-in themselves to warrant a cautious man in his belief than the accused is guilty of the offense with which he is charged.’ Defendant claims that the word ‘cautions’ should have been qualified so as to read ‘ reasonable and cautious.’ We think the criticism is hypercritical. Especially is this true when defendant himself had the court give Instruction No. 4 defining probable cause as such circumstances as would induce such belief in the mind of an ‘ordinarily reasonable and cautious person.’ We are aware that instructions for one party should not be contradictory of instructions on the same subject for the other party. But these are certainly not of that character.”

The conclusion of the Court of Appeals comports with our views, particularly with relation to the alleged conflict being cured by the giving, at the instance of relator, of Instruction No. 4, the relevant portion of which is as follows:

“You are instructed that the term ‘probable cause’ as used in these instructions, means belief by defendant, Mann, in the guilt of the plaintiff, based upon such facts and circumstances as would induce such belief in the mind of an ordinarily reasonable and cautious person..”

Furthermore, an instruction defining “probable cause,” of which the instant instruction is a counterpart, was held not misleading in Fugate v. Millar, 109 Mo. l. c. 285, 290, decided later than the Boeger case.

A like claim of error with respect to Instruction No. 1 is also pressed upon our attention. Such claim, however, has less merit than the insistence with respect to Instruction No. 2.

We must accordingly disallow both claims.

IV. Relator finally contends that the judgment rendered in the replevin suit, which was filed after the issuance of the information in the criminal prosecution, was improperly . , admitted. m evidence, contrary to rulings of this court in Carp v. Insurance Company, 203 Mo. 295, l. c. 338, and Vansickle v. Brown, 68 Mo. 627, l. c. 632, 633.

The opinion of the Court of Appeals bearing upon the admission of said judgment is as follows:

“Much complaint is made of the rulings of the trial court on the evidence and of the impropriety of remarks made by the court and misconduct of counsel for plaintiff. An examination shows that to the rulings on the principal part of these matters no exceptions were taken; and in the few instances where exception was taken no reason is given for the objection. Much space is taken up in the endeavor to show objectionable matter which we think is without a sound foundation. Chief among these is complaint against court and counsel in reference to the replevin suit to which we have already referred. This we find so intimately connected with the issues in the present case as to have been proper as well as unavoidable. ’ ’

While we do not fully concur in the reasoning of the Court of Appeals, nevertheless, the opinion having directed our attention, to the fact that no exception was taken as to the ruling of the court on the admissibility of the evidence complained of, we hold to the belief that the Court of Appeals arrived at the correct result. Had exception been saved, a conflict with the cases cited might have been engendered. But even so, such conflict alone would have scarcely been sufficient to have warranted our quashing .the judgment of the Court of Appeals as an entirety.

A painstaking review of all of the questions ably presented by learned counsel for relator serves to convince us that the writ herein was improvidently granted and should be quashed.

It is so ordered.

All concur, except J. T. Blair, J., who dissents.


text:
    BRUCE GOODWIN, by Next Friend, FRED B. GOODWIN, Appellant, v. THOMAS C. EUGAS and DORA EUGAS.
    Division One,
    December 19, 1921.
    1. NEGLIGENCE: Instruction: Ignoring Excessive Speed. An instruction which directs a verdict for the defendant unless the driver of the automobile saw or could have seen the pedestrian in the street in sufficient time to have warned him or to have stopped the car and thereby avoided striking him, is erroneous, where there is evidente that the collision was the direct result of ah excessive and negligent rate of speed; for it ignores sueh evidence and the driver’s prior negligence.
    2. -: -: Child: Ordinary Prudence. The law does not permit a presumption that a boy eight years old is capable of exercising that prudence which would be expected and exacted of an adult, and therefore an instruction telling the jury that an eight-year old boy was guilty of contributory negligence, barring recovery, if he could have avoided the injury by sueh use of his senses “as an ordinary prudent and careful person w.ould use and would exercise under sueh circumstances, ’ ’ is erroneous.
    3. -: -: Right to Highway: Automobile. An instruction telling the jury that “every operator of an automobile has the right to assume, and in the management of his car to aet on the assumption, that every person whom he meets, or^ who crosses or attempts to pass or cross in front of his machine, will exercise ordinary care and caution according to the circumstances, and will not negligently or recklessly expose himself to danger, but will make an attempt to avoid danger,” is erroneous, because in a general way it conveys to the jury the idea that the law is sueh that every other traveler on a highway must at his peril keep out of the way of an automobile, and that its operator has the right to act on the assumption that he will do so, whereas other travelers, including pedestrians, have the same right to the use of the traveled part of a street or highway that operators of motor vehicles have, and it is incumbent upon each to regulate their conduct by the observance of ordinary care and caution to avoid receiving injury or inflicting injury on the others,

      4. -: -: Assumption of Fact. An instruction telling the jury that “if you believe from the evidence that the collision and injury were the result of plaintiff’s own negligence and carelessness in attempting to cross the street at said place, after he saw the automobile approaching, and that without heeding he attempted to'pass in front of the same,” etc., is subject to the criticism that it assumes that the plaintiff, after he saw the automobile approaching, heedlessly attempted to pass in front of it.
    5. -: -: Misleading: Unmindful of Danger: Ignoring Main Issue. An instruction for defendant telling the jury that “the driver of an automobile, in the absence of any indication that a pedestrian, who is crossing or is about to cross a public street, is unmindful of the danger attendant upon an attempt to cross in front thereof, has the right to assume and to expect that such pedestrian will stop and will not step in front thereof when to do so will manifestly bring about a collision, and that, if acting upon said assumption the driver does not discover the pedestrian’s peril before it is too late, neither the driver nor the owner of the auto- ■ mobile is liable for the collision and the pedestrian’s injury,” is misleading if it ignores the main issue in the case, namely, the question whether the driver was proceeding at a negligent rate of speed.
    6.-: -: Excusing Defendant: Contributory Negligence: Excessive Speed. An instruction for defendant directed the jury that “if plaintiff, when he started across the street, had seen the defendant’s automobile coming toward the place where the injury occurred, and ran into the street chasing a playmate immediately in front of the approaching automobile, that the driver turned his car to prevent striking his said playmate and in doing so unavoidably struck the plaintiff and injured him, and if you so find from the evidence, then your verdict should be for the defendants.” The plaintiff was an eight-year old school boy, and school having been dismissed for the noon hour a iiumber of children, among them plaintiff and a little girl, with whom he was playing “tag,” passed along the sidewalk and parkway between the sidewalk and curb, on the side of the street next to the sehool house grounds; as plaintiff ran east after the little girl, and when she was about seventy-five feet from the first cross street, she suddenly turned and ran diagonally across the street, the plaintiff following her at a distance of nine or ten feet, and was struck by defendant’s automobile at some point between the curb and five or six feet north of it, the automobile coming from the west at a speed of from 25 to 30 miles an hour. There was evidence that plaintiff had gone into the street hut a step or two when he stopped and turned hack towards the sidewalk and was caught by the automobile suddenly turning in towards the curb, and he himself testified that he was running after the little girl and had taken but one or two steps from the eurb when he saw the car coming and got back into the gutter, and that it looked to him like the car was going to hit the little girl, but it struck him instead. Seld, that the instruction, whether given on the theory that the facts therein hypothecated excused the driver of negligence, or on the theory that such facts fastened contributory negligence upon plaintiff as a matter of law, was error. The first theory is untenable, because there was abundant evidence that the predicament in which the driver of the automobile found himself was the direet result of his own negligence in driving at an unlawful and excessive rate of speed; and the second is equally untenable, because the plaintiff did not, compel or 'cause the little girl to leave the sidewalk and run into the street, and had no reason to even anticipate that, she would do so, and whether, even if an adult, he was negligent in not anticipating that the automobile would suddenly turn in towards the gutter to which he had retreated was a question for the jury.
    Appeal from Cape Girardeau Court of Common Pleas.— Hon. John A. Snider, Judge.
    REVERSED AND REMANDED.

      H. E. Alexander and Spradling & Burrough for appellant.
    The petition charges a violation of the twelve-mile ordinance, a violation of the six-mile ordinance, a violation of the ordinance requiring operators of motor vehicles to slow down on approaching the intersection of streets and also common-law negligence. There was substantial testimony in support of each of the above charges of negligence. (1) Instruction No. 2, given for respondent, directed the jury to find a verdict for defendant if Floyd Eugas did not see appellant or, after, seeing him, he did not have a reasonably sufficient time to warn him of the approach of his automobile, or stop, or both, before striking him, and ignored the other charges of negligence. This was error. Abramowitz v. Railroad, 214 S. W. 120; Ruth y. Railroad, 70 Mo. App. 200; Bank v. Metcalf, 29 Mo. App. 395; Hoffman v. Perry, 23 Mo. App. 30; Stephen v. Railroad, 199 S. W. 274; P.ullam v. Vaughan, 218 S. W. 890; Shortridge v. Raiffeisen, 222 S. W. 1033. (2) Instruction 4, given for respondent, is erroneous for the following reasons: (a) It places appellant, a hoy eight years of age, on an equality with an adult in exercising reasonable care, for his own safety. Brown v. Railroad, 127 Mo. App. 510; Schmidt v. Railroad, 163 Mo. 654; Lange v. Railroad, 208 Mo. 479; Lynch v. Railroad, 112 Mo. 438; Jacobs v. Sporting Goods Co., L. R. A. 1917F, 9. (b) This instruction leaves out of view the duty of the operator of the automobile in the emergency. If appellant saw the automobile before it struck him, or by the exercise of ordinary care might have seen it in time to have avoided the injury, the operator of the automobile, according to this instruction, was under no obligation to try to avert the catastrophe, and was not blameworthy either whether by failing to look he did not see the danger, or seeing it he made no effort to avert it. Hovarka v. Railroad, 191 Mo. 457; Zander v. Railroad, 206 Mo. 464; Murray v. Railroad, 108 Mo. App. 507. (c) . The evidence discloses that appellant sustained his injuries at about noon; that school had recessed for lunch; and that there were many children on the street and sidewalk. The testimony of all the witnesses who saw the operator driving the car was that Floyd Eugas was driving the car at an excessive rate of speed. The instruction ignores the last-clear chance doctrine. (3) Instruction 5, given for respondent, does not properly declare the law. (a) It places upon the appellant, a boy eight years of age, the same degree of care and caution that the law requires of an adult, (b) It authorized the jury to find a verdict for the defendant, although the automobile was operated at a greater , rate of speed than twelve miles an hour, if appellant’s injuries were sustained by his own negligence and carelessness in attempting to cross the street after he saw the automobile approaching. Powers v. Railroad, 202 Mo. 283. (c) The great weight of evidence in this cause is that respondent was exceeding the speed limit, and the presumption of law is that appellant was exercising due care, and assuming, as he had a right to, that the car was not being run at a rate of speed in excess of that prescribed by ordinance, and that he did not know, or in the exercise of that degree of care and caution that could be expected, of a boy of his age and experience, could not have known, that it was so running, he was not guilty of negligence in proceeding to cross the street, using such carq and caution. Powers v. Railroad, 202 Mo. 280. (4) Instruction 6, requested by respondent, directs the jury to find a verdict for defendant if the negligence of plaintiff caused, or directly contributed to the injuries of appellant. This instruction ignores the fact that appellant is a boy of eight years and that his tender years would excuse concurring negligence. Holmes v. Railroad, 207 Mo. 164; Quirk v. Railroad, 21Ó S. W. 103; Malott v. Harvey, 204 S. W. 940. This instruction is also erroneous in requiring the jury to find that the negligence of defendant was the sole cause of appellant’s injuries. Wal-lack v. Railroad, 123 Mo. App. 160; Oates v. Railroad, 168 Mo. 548. ( 5) The giving of instruction 7, requested by respondent, was prejudicial error, (a) It assumes that appellant started across the street, and saw respondent’s automobile coming towards the place where the injury occurred, chasing a playmate in front of the approaching automobile, which was a disputed fact. Rice v. McFarland, 41 Mo. App. 494; Matthews v. Railroad, 26 Mo. App. 82. (b) It also gives undue prominence and comments upon facts proven by respondent, but denied by appellant, (c) It authorized a verdict for defendant on the sole ground mentioned in the instruction, and disregarded and ignored the violation of the ordinances pleaded and proven, (d) It does not require the operator of the automobile to exercise ordinary care and caution, but authorized a verdict for the defendant if appellant started across the street and saw respondent’s automobile coming toward the place where the injury occurred, chasing a playmate, in front of the approaching automobile, although the operator of said automobile could have been driving his car at the rate of fifty miles an hour and might not have been looking in front of him, but looking to the side waved at some companions, as the evidence showed that he was. Powers v. Railroad, 202 Mo. 280'.

      Caruthers & Barks and Hieles & Hines for respondent.
    (1) One of the fundamental rules of the law of negligence is that the person complaining of an injury occasioned by the negligence of another must himself be free from negligence. 28 Cyc. 37, 38; ITuddy on Automobiles (5 Ed.) sec. 351; Lewis v. Met. St. Ry. Co., 181 Mo. App. 421; Winter v. Van Blarcom, 258 Mo. 418; Keele v. Railroad, 258 Mo. 62; Priebe v. Crandall, 187 S. W. 605; Campbell v. Transit-Co., 121 Mo. App. 412. (2) Plaintiff did not plead the humanitarian doctrine, hence •cannot complain of defendant’s instruction 2 on that ground. Keele v. Railroad, 258 Mo. 62. No recovery can be had under the humanitarian rule if plaintiff had the last clear chance to step- aside and negligently failed to do so when aware of danger. Aronson v. Ricker, 185 Mo. App. 535. (3) A child eight years of age who left a place of safety and started to run across the street in front of an automobile and was struck was held to be guilty of negligence precluding recovery. Huddy on Automobiles (5 Ed.), sec. 479; Moran v. Smith, 114 Me. 55; Hargrave v. Hart, 9 Dom. Law Rep. 521. (4) Reversible error is error materially affecting the merits of the action, in the belief of the appellate court. Secs. 1276, 1513, R. S. 1919; Trainer v. Mining Co., 243 Mo. 371; State v. Douglas, 258 Mo. 291-297. (5) An erroneous instruction is not necessarily a ground for reversal. Hamon v. Transit Co., 102 Mo. App. 216-233; South West Ry. v. Railway, 110 Mo. App. 300. Although the instructions given may not be wholly free from criticism, yet, if tlie verdict is manifestly for the right party, judgment will not be reversed. Peterson v. Transit Co., 199 Mo. 321; Morus v. Eailway, 184 Mo. App. 106; Sellinger v. Cromer, 208 S. W. 871; Brisco v. Eailway, 208 S. W. 885. Nor will an erroneous instruction, where the verdict is for the right party, cause a reversal. State ex rel. v. Stone, 111 Mo. App.* 364; Nagle v. Eailway, 169 Mo. App. 284; Perry v. Van Matre, 176 Mo. App. 100. (6) Instructions must be taken as a whole. Patterson v. Evans, 254 Mo. 304. (7) The chauffeur is the best witness as to speed. Huddy on Automobiles (5 Ed.), sec. 920; Bowes v. Hopkins, 84 Fed. 769; Livingstone v. Dole, 167 N. W. 641.
   RAGLAND, C.

Plaintiff was struck and run over by an automobile owned by defendant, Thomas C. Eugas (hereinafter called the defendant), while it was being driven by his minor son along one of the public thoroughfares of the city of Cape Girardeau. This suit is to recover damages in the sum of $25,000 for the resulting personal injury. •

Fountain Street in the city of Cape Girardeau runs north and south; the next street east of it and paralleling it is Lorimier Street; they are intersected by Independence Street, a paved street running east and west. The place where the collision occurred was on the south side of Independence Street, near the curb, and from 75 to 90 feet west of the west line of Lorimier Street. From Fountain Street east to Lorimier along Independence there is a pronounced descent in the grade. The witnesses in speaking of the rise from Lorimier Street west called it a hill.

One of the public schools of the city was located on the south side of Independence Street immediately east of its intersection with Fountain Street. About twelve o ’clock noon on December 7, 1915, a number of children, variously estimated at from 25 to 75, who had been dismissed from this school for the dinner period, were going east on Independence Street between Fountain and Loriiher. Some of them were passing along the sidewalk and parkway on the south side of the street, among them, plaintiff, who was then eight years of age. He and a little girl, presumably of about the same age, were playing “tag.” She was running east on the sidewalk, and he was running after her trying to touch her. When she was within about seventy-five feet of Lorimier Street she suddenly turned and ran diagonally across Independence Street, the plaintiff following her at a distance of nine or ten feet. He was struck by the automobile at some point between the curb and'five or six feet north of it. The machine came from the west, it was being driven by defendant’s fourteen-year-old son, Floyd Eugas, who was hauling some milk cans for his father to a railroad station.

According to plaintiff’s evidence: The automobile came down the hill at the rate of from 25 to 30 miles an hour; just before it reached the point of the collision the driver turned his head and waved to some one with his left hand; the next instant the car- swerved suddenly to the south, and after striking plaintiff skidded 50 or 60 feet. Prior to the collision the car did not slow down and no signal whatever was given of its approach. Some of his witnesses testified that plaintiff had gone out into the street but. a step or two when he stopped and started back to the sidewalk, and that he was caught by the auto-bile suddenly turning in toward the curb. He himself testified that he was running after the little girl and some nine or ten feet from her “when she dodged out into the street right quick;” that he in following her had taken but one or two steps from the curb when he saw the car coming and got back into the gutter; that it looked to him like the car was going to hit the little girl, but it struck him instead.

According to defendant’s evidence, the little girl and the plaintiff, following her, suddenly ran from the sidewalk out into the street right in front of the oncoming car; she barely escaped, but he, while still running after her, was struck. The driver testified that plaintiff “jumped right in front of the car.” He also testified as follows:

“Q. Tell the jury whether or not lie (plaintiff) was running’ until he was struck? A. He ran out in the street and saw me coming and he started bach and be stopped and I hit him.
“Q. You say he stopped? A. Yes, he started to go back and he didn’t have time to go bach. . ' .
“Q. Did she (the little girl) run in front of your ear or not? A. Yes, sir.
“Q. Did you make any effort or not to turn the car to miss her? A. Yes, sir.
‘ ‘ Q. Which way did you turn it ? A. I turned it to the right and no more than I turned it until he jumped in front of the car.”

There were some trees in the parkway between the side.walk and the traveled part of the street. The evidence tends to show that on account of these trees there was not an unobstructed view.of the traveled part of the street west from where plaintiff left the sidewalk and went into the street until the curb was passed. For the same reason, no doubt, the driver' of a car coming down the hill from the west on Independence Street would not have had a clear view of a pedestrian starting to cross the street east of him near Lorimier Street until the latter passed the parkway and out into the street.

An ordinance of the city of Cape Girardeau provided that no motor vehicle should be driven over any of the city’s highways at a greater rate of speed than twelve miles an hour; it further provided that every person operating such a vehicle, upon approaching pedestrians upon the traveled part of any highway and not upon the sidewalk, and upon approaching an intersecting highway, should slow down and give a timely signal with bell, horn or other device. While there were some general averments in the petition as to the failure of the driver of the machine to exercise the degree of care required of him under the circumstances therein set forth, the violation of the several provisions of the ordinances was essentially the negligence counted upon.

Contributory negligence was the defense pleaded.

The court gave for defendant, among others, the following instructions:

“2. The court instructs the jury that before plaintiff can recover in this case, the jury must find and believe from the evidence that Floyd Eugas, the driver of the automobile, saw Bruce Goodwin in the street or could have seen him and after seeing him he had a reasonably sufficient time to warn him of the approach of his automobile, or to stop, or both, in order to avoid striking him, and unless the jury so find your verdict will be for the defendant.
‘ ‘ 4. The court instructs the jury that it is the duty of one crossing a city street to make reasonable use of all his senses in order that he may observe impending danger, and a failure to do so is negligence, and by such reasonable use means such as an ordinary prudeht and careful person would use and would exercise under the like circumstances, and if the plaintiff in attempting to make the said crossing, either saw the automobile before it struck him, or by the exercise of ordinary care on his part might have seen it in time to have avoided the injury by the reasonable use of his senses, there can be no recovery.
“5. The court instructs the jury that every operator of an automobile has the right to assume and in the management of his car to act on that assumption, that every person whom he meets, or who crosses or attempts to pass or cross in front of his machine, will exercise ordinary care and caution according to the circumstances and will not negligently or recklessly expose himself to danger, but will make an attempt ,to avoid danger.
“Although you may believe from the evidence that defendant’s minor son was, at the time and place of the injury, running the automobile at a greater rate of speed than twelve miles an hour, yet if you further believe from the evidence that the collision and injury was not the result of said excessive speed, but was the result of plaintiff’s own negligence and carelessness in attempting to cross the street at said place, after he saw the auto approaching, and without heeding attempted to pass in front of the' same and was thereby struck and injured, your finding and verdict should be for the defendant.
“6. . . . The driver of an auto, in the absence of any indication that a pedestrian who is, crossing or about to cross a public street in front of such auto is unmindful of the danger attendant upon crossing in front thereof, has the right to assume and to expect that such pedestrian will stop, and will not step in front of the car when doing so will manifestly bring about a collision of the car, and, if acting on said assumption the auto driver does not discover the pedestrian’s peril before it is too late, neither the driver nor the owner cf the auto is liable for a collision and the subsequent injury.
“7. The jury are instructed that if plaintiff, Bruce Goodwin, when he started across the street had seen the defendant’s auto coming toward the place where the injury occurred, and ran into the street chasing a playmate immediately in front of the approaching auto, that the driver turned his car to prevent striking his said playmate and in doing so unavoidably struck the plaintiff and injured him and if you so find from the evidence, then your verdict should be for defendant. ’ ’

The verdict and judgment were for defendant and plaintiff appeals.

Appellant assigns as error the giving of each of the instructions,hereinbefore set out.

I. Instruction No. 2 directed a verdict for defendant unless the driver of the automobile saw, or could have seen, the plaintiff in the street in sufficient time to have warned him, or stopped the car, and thereby avoided striking him. It ignores the question of the driver’s prior negligence. There was .ample evidence from which the jury could have found that, even though the driver of the car did not have sufficient time in which to have averted a collision after he saw plaintiff, or by the exercise of the proper degree of care could have seen him, yet, the collision was the direct result of an excessive and negligent rate of speed. The giving of the instruction was error. [Abramowitz v. Railroad, 214 S. W. 119, 120.]

II. By Instruction No. 4 the court told the jury in effect that plaintiff was guilty of contributory negligence, barring a recovery, if he could have avoided the injury by such use of his senses “as an ordinary prudent and careful person would use and would"exercise under like circumstances.” This was error. The law does not permit a presumption that a boy eight years old is capable of exercising that prudence which would be expected and exacted of an adult. It merely-requires of him the exercise of care commensurate with the intelligence, capacity and experience he is shown to possess. [Spillane v. Railroad, 135 Mo. 414.]

III. There was no evidence in the case that justified the giving of an instruction of the character of the one embodied in the first paragraph of No. 5. Besides, in a general way it no doubt conveyed to the jury the idea the law is that every other traveler on a highway must at his peril keep out of the way of an automobile, and that the operators of those vehicles have the right to act on the assumption that he will do so., While on the contrary other travelers, including pedestrians, have the same right to the use of the traveled part of a street or highway as operators of motor vehicles, and it is incumbent upon each to regulate their own use by the observance of ordinary care and caution to avoid receiving injury, or inflicting injury upon the others. Ordinary care upon the part of the driver of an automobile, however, requires him at all times and under all circumstances to anticipate and expect the presence of others on the highway and to keep his machine always under control so as to avoid collision with them. [McKenna v. Lynch, 289 Mo, 16; Lauson v. Fond du Lac, 141 Wis. 57.]

The latter part of the instruction is fairly subject to the criticism that it assumes that plaintiff, after he saw the automobile approaching, heedlessly attempted to pass in front of it.

IV. There was nothing in the evidence that warranted the giving of the quoted part of Instruction No. 6. Besides, it is misleading, because it ignored the real question m the case, namely, whether the driver was proceeding at a negligent rate of speed.

V. Upon what theory Instruction No. 7 was given is not clear, whether on the view that the facts hypo-thecated therein excused defendant’s driver of negligence, or whether they fastened contributory negligence as a matter of law upon plaintiff. It is manifest that the first is untenable, because there was abundant evidence from which the jury could have found that the predicament in which the operator of the car found himself, of having to strike plaintiff in order to avoid running over the little girl, was the direct result of one of the acts of negligence with which he was charged, namely, driving at an unlawful and excessive rate of speed.

With respect to the second possible view suggested by the instruction, it seems to impute fault to plaintiff in having chased his playmate immediately in front of the approaching automobile after he had seen it coming down the street, thereby voluntarily and carelessly putting her in peril, and for that reason, it in effect declares, he cannot complain of any injury which resulted to himself from the situation he so brought about. But the evidence on which the instruction was apparently based will not-bear any such construction. The plaintiff did not compel or cause the little girl to leave the sidewalk and run into the street; so far as the evidence discloses, he had no reason even to anticipate that she would do so; she chose the direction in which they would run in their play; he merely followed; but he stopped and turned back before he reached the path in which he saw the car coming. Was lie negligent in not anticipating that the automobile would suddenly turn in toward the curb where he was standing, or retreating to, the walk? This question should have been submitted to the jury even if plaintiff had been an adult instead of an eight-year-old child.

For errors in the instructions the judgment is reversed and the cause remanded for another trial.

Small, G., concurs; Brown, C., absent.

PER CURIAM: — The foregoing opinion of Ragland, C., is adopted as the opinion of the court.

All of the judges concur.