*235Concurring Opinion.
Ross, J.Inasmuch as I can not concur in all the reasoning contained in the opinion of the majority of the court, I am compelled to present the basis of my views of the record under consideration.
Before proceeding to the consideration of the • sufficiency of the facts found to support the judgment, it is necessary to ascertain the issues upon which the cause was tried.
The gravamen of the action, as alleged in the complaint, is that the servants of the appellant, while operating one of its locomotive engines, “negligently, mischievously, and willfully caused a large amount of steam to be let out of said locomotive, and expelled therefrom, causing a loud and unusual noise, and one which was calculated to and did frighten the plaintiff’s said horse, so that said horse became unmanageable and broke away from this plaintiff, totally destroying the buggy aforesaid, and breaking said horse’s leg and injuring said horse so that its value was entirely destroyed.”
The theory of the complaint is that by reason of the negligent, mischievous, and willful acts of appellant’s servants, in causing “a large amount of steam to be let out of said locomotive, and expelled therefrom, causing a loud and unusual noise, and one which was calculated to, and did, frighten the plaintiff’s said horse, so that said horse became unmanageable,” etc., the injuries complained of occurred.
A pleading must proceed upon some definite theory, and upon that theory it must be considered in determining the issue formed thereon. Western Union Tel. Co. v. Reed, 96 Ind. 195.
A complaint which undertakes to state a cause of action arising out of a willful injury, and at the same time *236to charge for an injury occasioned by mere negligence, is double, and can be considered only as presenting one issue. The object of this rule being to enforce a single issue and to avoid ambiguity.
In the case of Western Union Tel. Co. v. Reed, supra, Elliott, 0. J., speaking for the court, says: “It is no great hardship to require obedience to rules of pleading and logic, and not to do so will result in the evil of leaving disputants without a direct issue, and the courts without the means of determining" the competency or relevancy of evidence. In order to bring the parties to an issue, it is necessary to require them to make their pleadings conform to some definite theory, and to be sufficient upon that theory;” and, further on in the opinion, it is said: “A complaint for the recovery of a penalty must be good for that purpose, and not for some other, since to rule otherwise would put it in a plaintiff’s power to make an elastic pleading, changeable to meet the exigencies of his case.”
As the court said, in Gregory, Admr., v. Cleveland, etc., R. R. Co., 112 Ind. 385, “There is a clear distinction between cases which count upon negligence as a ground of action and those which are founded upon acts of aggressive wrong or willfulness, and a pleading should not be tolerated which proceeds upon the idea that it may be good either for a willful injury or as a complaint for an injury occasioned by negligence.”
The specific act of willfulness charged in the complaint in this case is that appellant’s servants “negligently, mischievously and willfully caused a.large amount of steam to be let out of said locomotive and expelled therefrom.” This allegation can admit of no other interpretation than a charge of willfulness, and with this view of the issues we proceed to the consideration of the facts found in the verdict.
*237Those parts of the verdict containing the facts found in support of the issues are as follows: “That as said engine crossed over Spring street, the persons upon said locomotive suffered the steam to escape therefrom, from the lower part of said locomotive, with hissing noise, which steam and noise were calculated to and did frighten plaintiff’s horse, and render him unmanageable; that if the servants of the defendant in charge of said locomotive had not, when crossing Spring street, suffered and permitted the steam to escape from the lower part of the locomotive, the injury to plaintiff’s horse and buggy would not have occurred.”
There is no finding that appellant’s servants willfully permitted steam to escape, neither is it found that it was not necessary in the-operation of the locomotive for steam to escape,- nor do the jury find that the servants of the appellant unnecessarily permitted the steam to escape. If it was necessary, in the operation of appellant’s locomotive engine, for steam to escape — it was lawful. And it must be presumed that it was necessary, because the jury failed to find the escape of steam, at the time complained of, to have been unnecessary. Had the jury found such escape of steam to have been unnecessary, in order that the appellee might recover for a willful injury, it was necessary, either that facts be found from which the court might infer that such escape of steam had been purposely and intentionally permitted with design to produce injury, or such facts as would have shown that it was permitted under such circumstances — either known, or which should have been known, to the servants permitting the act — as that its natural and probable consequences would be to produce injury to others.
In the case of Belt R. R. & Stock Yard Co. v. Mann, 107 Ind. 89, Mitchell, Judge, speaking for the court, said: “There must have been either an actual or con*238stxuctive intent to commit the injury. The act must have involved conduct, quasi criminal in character.”
And the same judge in Louisville, etc., R. W. Co. v. Bryan, 107 Ind. 51, said: "To constitute a willful injury, the act which produced it must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others, ■ and a willingness to inflict the injury complained of.”
In the case of Chicago, etc., R. R. Co. v. Nash, 1 Ind. App. 298, this court, in construing the allegations, of a complaint, says: "To say that an act has been done willfully and willingly, is to indicate that it has been done intentionally, and implies that the person doing it knew what he was doing, and acted from choice as a free agent. Such an allegation is inconsistent with the idea of accident, mistake, inadvertence, negligence. It implies that the will was a party to the act, and that the act was done, not because of doubt ox uncertainty as to the right or proper course to pursue, but without adequate reasonable cause.”
It is settled beyond all controversy that when a special verdict is silent as to any fact it is equivalent to a finding, as to that fact, against the party having the burden of establishing such fact. Gray v. Taylor, 2 Ind. App. 155; Wainright v. Burroughs, 1 Ind. App. 393; Parke County Coal Co. v. Terre Haute Paper Co., 129 Ind. 73; Nicodemus v. Simons, 121 Ind. 564; Quill v. Gallivan, 108 Ind. 235.
And it is equally well settled that the plaintiff must recover secundum allegata et probata, or .not at all. If the facts found in the special verdict are substantially different from the allegations of the complaint, the plaintiff can not recover, and judgment should go on the verdict in favor of the defendant. Brown v. Will, 103 Ind. 71; Thomas v. Dale, 86 Ind. 435.
*239Facts found in a special verdict which are not within the issues, as formed by the theory of the pleadings, are mere surplusage, and should be disregarded by the court in the determination of the rights of the parties and the rendition of judgment. Kitts v. Willson, 130 Ind. 492; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151; Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Hasselman v. Carroll, 102 Ind. 153.
A special verdict should be limited to the case made by the pleadings, and should contain only such facts, within the issues, as have been proven, and should not embody conclusions of law or of fact. Chicago, etc., R. W. Co. v. Burger, 124 Ind. 275.
It is not insisted by the appellant, on this appeal, that the facts found tend to make a case different from that alleged in the complaint, but admitting to be true and properly found every fact found in the special verdict, counsel insists that such facts did not warrant the court in rendering judgment thereon in favor of the appellee.
I fully concur in the opinion of the majority of the court that the facts found are sufficient to sustain the judgment, and for that reason the judgment sho.uld be affirmed.
Filed Feb. 28,1893.