— Appellee brought this action against appellant to recover damages for an alleged assault on appellee while he was a passenger on one of appellant’s trains. Prom a verdict and judgment in favor of appellee in the sum of $325, appellant prosecutes this appeal.
The complaint is in two paragraphs, and the averments of each are, in all material respects, the same. The sufficiency of each paragraph was questioned by a demurrer, which was by the court overruled and exceptions saved. The only answer was a general denial.
A motion for new trial was overruled. The rulings on said demurrer and motion are relied on for reversal.
1. *3052. *304It is insisted that neither paragraph of the complaint is sufficient, because of the absence of an averment “that the agent or servant who did the assaulting was in the line of duty.” In this connection, we should remark that because of the wording of the assignment of error, which calls in question this ruling, if either paragraph be sufficient, no available error is presented thereby. This, however, is unimportant, because in each paragraph the averment questioned by appellant’s objection is the same. This averment is as follows: “Said defendant by its employees, servants and agents violently, insolently and brutally assaulted, struck and beat this plaintiff about the head, face and body,” etc. Appellant could not have committed *305the assault through its agent, servant or employe except such person was acting in the line of his duty, and such an averment necessitates not only proof that an agent, employe or servant of appellant committed such assault, but the further proof that such person was in the line of his duty as such agent, employe of servant when he committed the assault. We now make these observations because of other questions that arise in the ease.
1. The sufficiency of the complaint against the objections made has been expressly decided by the Supreme Court and this court. Wabash R. Co. v. Savage (1887), 110 Ind. 156, 159, 9 N. E. 85; Indianapolis St. R. Co. v. Slifer (1905), 35 Ind. App. 700, 74 N. E. 19; Citizens St. R. Co. v. Clark (1904), 33 Ind. App. 190, 71 N. E. 53, 104 Am. St. 249; Feighner v. Delaney (1898), 21 Ind. App. 36, 51 N. E. 379.
3. In support of its contention that the court erred in its rulings on the motion for a new trial, it is first insisted by appellant that the damages are excessive. The rule seems to be general with eourts of appellate jurisdiction that this ground of a motion for a new trial will be of no avail in such courts except in cases where the damages assessed by the jury are so large that they induce the belief on the part of such court that the jury must have acted from prejudice, partiality or corruption. Such has been the frequent expression of this court and the Supreme Court. Louisville, etc., R. Co. v. Kemper (1899), 153 Ind. 618, 53 N. E. 931; Chicago, etc., R. Co. v. Bester (1911), 47 Ind. App. 141, 93 N. E. 1039, and authorities cited.
4. The amount of the judgment in this case cannot he said to be so excessive as to induce in the minds of the court the belief above indicated.
It is insisted that the verdict of the jury is not sustained by sufficient evidence, and that it is contrary to law. As thesame reasons are urged in support of each of said grounds *306of the motion, they will be considered together. The substance and effect of appellant’s contention is as follows: (1) “Every case must proceed to judgment upon some definite legal theory, and upon appeal, the parties must be held to the theory upon which the case was tried.” (2) That both paragraphs of the complaint were drawn on the theory that appellee was assaulted by a servant of appellant, acting within the line of his duty, and not on the theory that there was a failure on the part of appellant, as a carrier, to protect appellee from the assaults of one of its servants. (3) That the evidence fails to show anything more than that the person who committed the assault on appellee was a servant of appellant, and that there was no evidence that such servant was acting in the line of his duty, or within the scope of his employment when he committed such assault.
5. The first proposition is a legal one, supported by authority, Oölitic Stone Co. v. Ridge (1908), 169 Ind. 639, 644, 83 N. E. 246, and authorities cited; Diggs v. Way (1899), 22 Ind. App. 617, 621, 51 N. E. 429, 54 N. E. 412; Elliott, App. Proc. §§489,-490; Adams v. Davis (1886), 109 Ind. 10, 21, 9 N. E. 162.
6. We agree, also, with appellant in its contention that the complaint in this ease proceeds on the one definite theory only, viz., that appellant violently, brutally and insolently committed the assault by and through its agent, etc., and not that it failed to protect appellee from the assault. In this connection, it is insisted by appellee that inasmuch as he was a passenger on appellant’s train, appellant owed him the duty of protecting him from assault and injury, and that liability for injury resulting from a breach of such duty is not made to depend on the injury “being committed by one acting within the scope of his employment.” As supporting this contention, appellee relies on the following cases: Citizens St. R. Co. v. Clark, supra; Dickson v. Waldron (1893), 135 Ind. 507, 34 N. E. *307506, 35 N. E. 1, 24 L. R. A. 483, 41 Am. St. 440; Baltimore, etc., R. Co. v. Davis (1909), 44 Ind. App. 375, 89 N. E. 403.
There can be no doubt but that the general rule is as claimed by appellee, and that it is supported by the authorities cited, as well as by many others that might be cited. We think, however, that inasmuch as the carrier is not an insurer of the safety of its passengers while on its trains, there should be and are exceptions to this general rule. But we need not here discuss these exceptions, because, as to the question under discussion, appellee is in no position to invoke the benefit of the rule, for the reason that he has tendered no pleading to which it is applicable. Neither paragraph of the complaint proceeds on the theory that appellant permitted appellee to be assaulted by, or failed to protect him from the assault of the agents, servants or employes of appellant, but, on the contrary, each paragraph proceeds on the theory that by and through its agents appellant itself committed the assault.
7. Under the authorities first above cited, appellee is bound by the theory of his complaint, and may not be permitted, on appeal, to ask that his judgment in the court below be supported on a theory different from that presented by the complaint on which his case was tried and his judgment obtained. In determining the sufficiency of the evidence to support this theory, we are required to look alone to that most favorable to the general verdict, which is a finding that every fact essential to a recovery under such theory was sustained by the evidence. Chicago, etc., R. Co. v. Vandenberg (1905), 164 Ind. 470, 482, 73 N. E. 990; Heath v. Sheetz (1905), 164 Ind. 665, 667, 74 N. E. 505; Mazelin v. Rouyer (1893), 8 Ind. App. 27, 29 N. E. 154.
*3088. *307While an examination of the evidence has impressed us with the belief that there is but little, if any, direct evidence that can be said to indicate that the servant or employe *308of appellant who committed the assault was acting within the scope of his authority when he committed it, yet there was some evidence from which the jury
might have drawn such inference. This conclusion is supported by the decisions of this court and the Supreme Court. Grand Rapids, etc., R. Co. v. King (1908), 41 Ind. App. 701, 706, 83 N. E. 778; Dickson v. Waldron, supra, 517, 518, and authorities cited; Barnett v. Gluting (1892), 3 Ind. App. 415, 29 N. E. 154, 29 N. E. 927; Henry v. Heeb (1888), 114 Ind. 275, 16 N. E. 606, 5 Am. St. 613. It follows that said grounds of the motion for a new trial do not present reversible error. Delaware, etc., Tel. Co. v. Fiske (1907), 40 Ind. App. 348, 351, 81 N. E. 1110; Heaston v. Gallagher (1908), 41 Ind. App. 20, 22, 83 N. E. 252; Secor v. Skiles (1886), 106 Ind. 98, 100, 5 N. E. 897.
9. Error in admitting certain evidence of Charles Goss, to which exception was properly saved, is urged. In response to the question, “What did Mr. Peck do, if anything, in the way of prosecuting people for criminal offenses connected with the Southern Railway Company?” the witness answered: “I have known him to prosecute fellows for being intoxicated on trains several times, and also for jumping on and off of trains.”
It is insisted that there was no claim that the servant or employe of appellant who committed the assault was attempting to arrest appellee for intoxication, or that he was trying to arrest him for jumping on or off trains, and that the answer in no way showed the authority of Peck to put passengers off of the train. It was necessary that appellee should prove Peck’s agency, and while this evidence may not have tended to prove that Peck was acting within the scope of his employment at the time of the alleged assault, yet we think, under the law, it was proper as tending to prove agency, or that Peck was in the employ and service of appellant. Indiana, etc., R. Co. v. Adamson (1888), 114 Ind. 282, 290, 15 N. E. 5; 31 Cyc. 1662, 1663; Jewett *309v. Lawrenceburgh, etc., R. Co. (1858), 10 Ind. 539, 543.
10.
Its effect and purpose, or the particular feature of the case to which it was applicable, could be reached and controlled by instructions rather than by objection to its admission.
The court, at appellee’s request, gave fourteen instructions, to each of which objections are urged. These objections are not of sufficient importance and weight in each instance to justify the extension of this opinion by setting out each of the same.
11. Objection is made to instruction one, in that it omits the words “in the line of his duty”. The instruction begins with a statement of the nature of the action, and closes with the clause objected to, which is as follows: “And it is claimed by the plaintiff that said assault * * * was committed by one J. T. Peek, who is claimed by the plaintiff to have been a duly authorized agent of the defendant at the time of the commission of the act complained of.” This instruction does not incorrectly state appellee’s claim-, so far as it goes. Under the theory of his complaint he did claim that the person who assaulted him was the authorized agent of appellant. This theory also involved the further claim that such agent, at the time he committed the assault, was acting within the scope of his authority as such agent; but inasmuch as the instruction did not attempt to state the entire law of the case, or to state the elements of the cause of action necessary to be proven'to entitle appellee to recovery, we think the omission harmless. Appellant had its theory of the case in this respect as fully and favorably covered by instructions given, at its instance, as the law justifies. Taking the instructions as a whole, we are convinced that no possible harm could have resulted from the omission in this instruction of the qualifying words suggested by appellant.
*31012. 13. *309It is conceded that instruction two and three are correct statements of abstract propositions of law, but it is insisted *310that they are “inapplicable to the circumstances and evidence here”. These instructions have the approval of the Supreme Court in cases which we think authorize their approval here. Instruction four has the approval of both the Supreme Court and this court, but appellant asserts that it is not applicable to the evidence. The evidence was of a character to warrant an inference by the jury to which the instruction was applicable. The fifth instruction is objected to on the ground that it practically tells the jury that proof of agency is sufficient to charge appellant with the assault committed by its agent Peck. This instruction is not open to the criticism made. It simply tells the jury that it was “not necessary that the plaintiff prove the employment of the agent who is charged to have assaulted * * * him by direct and positive evidence,” but that “agency may be established by proof of circumstances alone.” The instruction is supported by authority. Barnett v. Cluting, supra, 420; Indiana, etc., R. Co. v. Adamson, supra.
14. Instruction six, objected to, is as follows: “You are instructed that in this case even though the plaintiff had misbehaved himself in such a manner and to such an extent as to justify his expulsion from the train by the defendant’s agents and servants, still if you find from the evidence that such agents or servants used more force than was necessary in ejecting the plaintiff from the train, the defendant would be liable and your verdict should be for the plaintiff.” The general principle involved in this instruction has the approval of the Supreme Court in the case of Chicago, etc., R. Co. v. Bills (1885), 104 Ind. 13, 3 N. E. 611, and is supported by other authority. However, we think the wording of the instruction is open to the criticism made by appellant, that in its last clause it assumes that appellee was ejected and that force was used. The assumption is so involved in the fact which the court requires that the jury must find from the evidence that it *311becomes harmless. The instruction predicates liability on the condition that the jury “find from the evidence that such agents * * * nsed more force than was necessary in ejecting plaintiff,” etc. The jury could not find this fact without also finding that “appellee was ejected and that force was used.”
15. The seventh instruction is as follows: “You are instructed that the law places upon the railroad company the burden of safely and properly carrying its passengers, and if it intrusts this duty to its servants, the law holds the company responsible for the manner in which such servants execute it, and the company is obliged to protect its passengers from violence from its servants.” It is contended by appellant that “to say it ‘is obliged to protect its passengers from the violence of its servants’ not only introduces a conflicting theory into this case, but such statement is not the law under many conditions and circumstances.” Prom this clause of the instruction we think the jury may have understood that appellant, under the law, was required to insure the. safety and protection of its passengers from the assault of all its servants, regardless of whether they were in charge of such train, or had anything to do with its control or operation. In other words, the jury may have understood from this instruction that if an employe of appellant, serving it in a capacity entirely remote from the operation or control of its passenger-trains, but riding as a passenger on such train, should assault one of the other passengers, appellant would be liable for such assault, even though each of appellant’s servants in charge of such train exercised the highest degree of care and caution, and did everything in his power to anticipate and prevent such assault. We do not think this is the law. It is true that this instruction has a qualified approval of the Supreme Court in the case of Louisville, etc., R. Co. v. Kelly (1884), 92 Ind. 371, 47 Am. Rep. 149, where it is said: “It is sometimes proper to give a general statement of the duty *312of carriers, and when the statement is a correct one, even though not strictly necessary under the evidence, there is no material error.”
Judge Elliott, in approving the instruction, recognized that there may be exceptions to the general rule declared therein, and that “if the violence could not have been foreseen or prevented by the highest degree of care, the carrier would be absolved from liability,” but stated that, as a general rule, the announcement was correct, and could not be deemed erroneous in the particular case in which it was given.
The evidence in this case shows that Peek was not one of the regular trainmen in charge of such passenger-train, and, even if the issue tendered by the complaint had authorized the announcement of the general rule contained in the instruction, we think the evidence is such as to suggest that harm might result to appellant from announcing the same without indicating the. exceptions to the rule, or otherwise limiting or qualifying the instruction. But, as we have already indicated, the theory of this complaint is that appellant by its agents committed the assault. This being the theory of the complaint the general rule stated in the instruction contained an element inapplicable to the issues tendered, and, in our judgment, prejudicial to appellant.
16. The ninth instruction simply tells the jury, in effect, that the intoxication of appellee “would not justify an agent or servant of the defendant in committing an assault upon him if one was committed unless the plaintiff was boisterous or violating some rule of the '* * * company. ” It is conceded that this is a correct statement of the law “under certain conditions so far as it goes” but contended that it makes appellant “liable for any agent whether in the line of his duty or not.” The objection is not well taken. There is no attempt in the instruction to enumerate the elements of liability, but, on the contrary, *313it only purports to tell the jury when intoxication in such a case will and when it will not justify an assault.
17. The tenth instruction is objected to, and is as follows: “You are instructed that if you find from the evidence that the defendant company was guilty of wrongfully ejecting the plaintiff from its train of cars and that the assault on the plaintiff, if any, was unprovoked, was wilful or malicious, and was perpetrated in a rude or insulting manner, evincing an intent to wound and injure the plaintiff’s feelings and bring him into contempt and disgrace in the estimation of the public, then the case is one justifying the imposition by the jury of exemplary damages, and the jury are instructed that in estimating the proper amount of such damages, they may take into consideration the position, character, standing, influence and feeling of the plaintiff and may assess damages for physical suffering, mental agony, shame and humiliation. ’ ’ The latter part of this instruction authorizes the jury to assess damages for physical suffering, mental agony, shame and humiliation, without reference to the evidence on either of said subjects, and without reference to any finding by the jury that appellee had in fact been shown to have experienced any physical suffering, mental agony, shame or humiliation. This was undoubtedly error, and it was such an error as might necessarily be harmful to appellant.
18. The concluding sentence in instruction eleven is objected to, and is in these words: “And if you find from the testimony that the wrongful act was done in a spirit of oppressive malice or wantonness, you may add to such compensatory damages such exemplary as, from all the circumstances, you may deem just.” This instruction is approved in the case of Jeffersonville R. Co. v. Rogers (1871), 38 Ind. 116, 122, 10 Am. Rep. 103. The case at bar being one where exemplary damages, under the conditions expressed in the instruction, are authorized, the reason for *314the holding in the cases relied on by appellant does not exist. Cleveland, etc., R. Co. v. Dixon (1912), post, 658, 96 N. E. 815, 819.
19. Instruction thirteen told the jury that inasmuch as defendant had not pleaded justification for the assault and battery complained of, that any evidence introduced for that purpose should not be considered by it. Appellant insists that it is the business of the court to instruct within the issues, and that this instruction was outside the issues and harmful. If the court had admitted evidence, either properly or improperly, that was likely to be considered for the purpose mentioned when there was no issue tendered that permitted its consideration for such purpose, we think it was proper for the court to instruct the jury on this subject. This conclusion is supported by authority. Norris v. Casel (1883), 90 Ind. 143; Fetrow v. Wiseman (1872), 40 Ind. 148, 157.
20. It is admitted that instruction fourteen is a correct statement of the law, but it is objected that the instruction assumes that there was a wilful wrong. The instruction does not assume that there was any wrong committed wilful or otherwise, but simply tells the jury that “the doctrine of contributory negligence does not apply to a wrong wilfully committed.”
Instruction fifteen is objected to because it assumes that there was injury. The instruction begins by saying “if you find from the evidence that the plaintiff! was wilfully thrown * * * (and) thereby received some injuries.” We need only say with reference to appellant’s instructions, that but three out of seventeen tendered were refused. The first was a peremptory instruction for defendant, and, in view of the evidence, properly refused. The eleventh in so far as it was proper, was covered by other instructions.
*31521. *314By instruction seventeen, defendant would have been relieved of liability for an act of Peck’s in assaulting appellee while assisting him from the train, even though at the time *315lie was acting as the agent of appellant, in the line of his duty, provided only that he (Peck) had not complied with §5263 Burns 1908, §3917 R. S. 1881, which requires that trainmen shall wear on their hats or caps a badge of their office, etc. It can hardly be seriously contended that appellant could take advantage of the neglect of its own agent to comply with the law of the State to relieve it from liability for the acts of such agent.
On account of the errors committed by the court below in giving appellee’s instructions seven and ten, given above, the motion for a new trial should have been sustained.
Judgment reversed, with instructions to the court below to grant a new trial, and for further proceedings consistent with this opinion.
Note. — Reported in 99 N. E. 762. See, also, under (1) 2G Cyc. 1571; (2, 9) 6 Cyc. 628-New Anno.; (3) 3 Cyc. 381; (4) 13 Cyc. 121; (5, 6) 2 Cyc. 670; (7, 8) 3 Cyc. 349; (10, 19) 38 Oyc. 1756; (11, 13) 26 Cyc. 1578; (12) 38 Cyc. 1612; (14) 38 Cyc. 1809; (17)' 13 Cyc. 238; (18) 13 Cyc. 244; (20) 38 Cyc. 1663. As to the liability of a railroad company for assault by its servants upon a passenger, see 32 Am. St. 95. Liability of carrier for assaults by employes upon passengers, see 14 L. R. A. 738; 17 L. R. A.- (N. S.) 764 ; 40 L. R. A. (N S.) 999.