Voy

This is an appeal from a money judgment entered upon a verdict for plaintiff in an action for assault and battery. The jury awarded plaintiff $500 general damages and punitive damages in the sum of $3,000, but no special damages.

, The complaint, in the charging part, alleges: ‘ ‘ That on or about the 28th day of August, 1956, ... the defendant wrongfully, unlawfully, and violently assaulted and beat the plaintiff, and defendant struck plaintiff in and about the face fracturing plaintiff’s jaw and causing injury to his left eye, and numerous contusions and abrasions about the plaintiff’s face and head.” The prayer is for special and general damages. Punitive damages are not mentioned.

In its instructions to the jury, the trial court included the following instruction:

As grounds for reversal of the judgment defendant contends that the giving of the instruction on exemplary damages and the award of exemplary damages was error since the issue was not raised in the pleadings, nor by the evidence, and further that the instruction as delivered was erroneous.

In support of defendant’s first contention that “The giving of an instruction on exemplary damages and the award of exemplary…