dissenting.
I dissent. The majority would have us substitute our judgment for that of the jury when it suggests that the jury be limited to a consideration of only one theory: the use of excessive force in making a lawful ar*1078rest. It seemingly bases its opinion upon a misinterpretation of the Flemings’ complaint as well as some of the facts surrounding the incident. The essence of the complaint was not that the “arresting officers unnecessarily and intentionally injured Fleming in the course of the arrest” but rather, that he was injured in the course of the arrest. Fleming advances four theories in making his argument; two of them, the majority opines, should not have gone to the jury.
The majority feels that Fleming’s argument that he was injured by the police in the course of their effecting his arrest in a negligent manner is contrary to the evidence. It buttresses its argument by saying “In this context, any reference to the doctrine of negligence is superfluous, for the use of the term ‘negligence’ tends to characterize the state of mind of the actor.” Negligence has nothing to do with the actor’s state of mind. W. Prosser, The Law of Torts, 30 (3rd Ed.1964). Rather, it is the actor’s breach of a duty owed and the resulting damages which define this tort. Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701.
This situation is arguably analogous to one in which a doctor, while performing an operation, carries out the surgical procedure in a negligent fashion. The fact that the patient is aware of this potentially offensive touching and has given informed consent is no protection for the surgeon’s negligence. Admittedly, the theory of a negligent performance of an arrest procedure is unusual. Nonetheless, I think it is tenable. The fact that the police intended to arrest Fleming would not preclude their doing so in a negligent fashion. Here we have a man, who had been drinking, engaged in a heated dispute with five police officers. Was it reasonable for at least four of them to have been involved in physically subduing him? Were they negligent in effecting this arrest procedure? Like the surgeon, could a privilege protect them if they had performed this arrest in a negligent fashion? Because negligence is a question of fact, I conclude it was rightfully submitted to the jury for consideration. Meadowlark Farms, Inc. v. Warken (1978), Ind.App., 376 N.E.2d 122.
The majority’s objection to the jury’s consideration of the false arrest theory seems to be based on its feeling that Fleming’s behavior created the disturbance in the neighborhood. There is evidence in the record which indicates that the “peace and quiet” of the neighborhood could have been disturbed by the gathering of a crowd after the fall of Fleming’s wife from the second story porch, the coming of the ambulance to take her to the hospital or the arrival of the squad cars. Whether Fleming alone created the disturbance or whether the crowd was drawn and held by other factors is a question which the jury should be allowed to consider.
When a jury has been instructed on two or more possible theories of recovery, this Court will sustain the judgment on any theory supported by the evidence. Montgomery Ward & Co., Inc. v. Tackett (1975), 163 Ind.App. 211, 323 N.E.2d 242. There the Court stated:
“It is the duty of this court to sustain the decision of the trial court on any theory supported by the evidence . Tacketts’ counterclaim was in two paragraphs. The first claimed compensatory and exemplary damages for alleged wrongful termination of the franchise agreement. The second alleged that Tacketts had been induced to enter into the franchise agreement through various fraudulent misrepresentations by agents of Montgomery Ward, and claimed compensatory damages. The jury returned a general verdict awarding compensatory damages on the counterclaim. In resolving the question of the sufficiency of the evidence to sustain the verdict, we need only determine that the verdict is supported by sufficient evidence upon either of the two paragraphs. . . . ” (Citations omitted.).
323 N.E.2d 242, 247. In addition, if the judgment is correct on any theory of law applicable to the evidence, it will be affirmed. Cressy v. Shannon Continental *1079Corp. (1978), Ind.App., 378 N.E.2d 941; Thornton v. Pender (1978), Ind., 377 N.E.2d 613. There is sufficient evidence in the record to support the jury’s finding on at least one of the theories presented at trial. All four theories went to the jury, supported by adequate instructions. I conclude that these theories were valid, and, accordingly, I would have affirmed the trial court’s judgment.
The City of South Bend raises a number of instructional errors. It is not error to refuse an instruction if its subject matter is substantially covered by other instructions actually given. Thornton, supra. This was the case when the court refused to give two of the City’s tendered instructions. The instructions are sufficient if, when taken as a whole, they fairly state the law applicable to the case. Pittsburgh, C., C. & St. L. Ry. Co. v. Higgs (1905), 165 Ind. 694, 76 N.E. 299. They should be confined to the issues and the evidence before the court and should correctly state the law pertaining to such issues and facts. Gregory v. White Truck & Equipment Co., Inc. (1975), 163 Ind.App. 240, 323 N.E.2d 280, 290, n. 7. When reviewing an instruction on appeal, this Court will look to see if an appellant has demonstrated any harm. Chrysler Corporation v. Alumbaugh (1976), Ind.App., 342 N.E.2d 908. I can not find any harm demonstrated by the City; therefore, I would affirm the judgment of the trial court.