author: COLEMAN, Justice.

text:
    Jack FREEMAN, Appellant, v. Roger C. HILL, d/b/a Commercial Equipment Leasing Company, Appellee.
    No. 15113.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Oct. 12, 1967.
    Rehearing Denied Nov. 2, 1967.

      Schlanger, Cook & Cohn, Joel W. Cook, Houston, for appellant.
    Hutcheson, Taliaferro & Hutcheson, Greg N. Martin, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment entered in a suit for conversion of two Mark V Raytheon Radarange Ovens. After a trial to the court without a jury, a judgment was entered for the plaintiff in the sum of $2,069.18.

Appellant contends that no conversion was shown by the evidence; that title passed to appellant, with appellee’s consent, subject to an undisclosed outstanding lien exceeding the purchase price, so that appel-lee suffered no actual pecuniary loss in the transaction, and that the trial court’s finding as to the value of the ovens is contrary to the great weight of the evidence.

The ovens in question were purchased by Roger Hill in April 'or May, 1964, for a total consideration of $4,990.00. He borrowed $4,300.00 of this money from the Frost National Bank of San Antonio, securing the loan with a chattel mortgage which was duly recorded in Harris County, Texas. The ovens were leased to Attif’s, Inc. and Attif Halla way of Houston, Texas, and the lease agreement was assigned to the bank as collateral security. The purchase and lease were arranged by Jack Dillin, and as an inducement to Hill to enter the transaction, Dillin entered into a written agreement to repurchase the ovens from Hill in the event of a default by the lessees. This agreement provided that Dillin would repurchase the ovens on default within thirty days after demand by the payment of the agreed price in cash to appellee, Hill, at his office in San Antonio, Texas.

After the lessees defaulted under the terms of the lease agreement in October, 1964, Hill called on Dillin to repurchase in accordance with his agreement. When it appeared that Dillin would not be able to make the cash payment, Hill instructed Dillin to pick up the ovens from the lessee and to find a purchaser for them. Dillin then sold the ovens to Jack Freeman, appellant, for $1,000.00 to be paid by a credit on an indebtedness owed to Freeman by Dillin. Hill knew nothing about this sale until after Dillin had executed a bill of sale and had delivered possession to Freeman. When Hill learned of the sale to Freeman, he denied that Dillin was authorized to sell the ovens and demanded possession from Freeman in March, 1965. Freeman refused to deliver the ovens to Hill. Hill continued to make the stipulated payments on his note to Frost National Bank until November, 1965. Subsequently Riverview Company, assignee of Frost National Bank, foreclosed on the ovens by virtue of the chattel mortgage, after one of the ovens had been sold by Freeman. They were repossessed in August, 1966.

The trial court filed findings of fact and conclusions of law. Appellant attacks certain of the findings of fact as having no support in the evidence. He contends that certain conclusions of law are erroneous and that the finding of fact with reference to the value of the ovens is contrary to the great weight and preponderance of the evidence. None of these assignments can be sustained.

The evidence supports the conclusion that at the time Dillin executed the bill of sale to Freeman, he was neither the owner of the ovens nor authorized to execute a bill of sale to a purchaser on behalf of appellee. By a letter dated February 9, 1965, appellee demanded that Dillin repurchase the ovens in accordance with the terms of the repurchase agreement. In the letter he told Dillin that he would send him a bill of sale when he received $4,040.99 cash in his office in San Antonio. Dillin testified that he did not have the money and did not pay appellee. There is no evidence that would require a finding that the offer to sell to Dillin contemplated terms other than cash. There was no sale by Hill to Dillin. Lang v. Rickmers, 70 Tex. 108, 7 S.W. 527 (1888); Valley Stockyards Company v. Kinsel, 369 S.W.2d 19 (Tex.Sup.1963).

The evidence clearly supports a finding that Hill only authorized Dillin to find a purchaser for him. Hill so testified, and a letter from Hill to Dillin’s attorney supports this testimony, as does a letter from Hill to Dillin, a portion of which was quoted in the record. Dillin had no actual authority to sell the ovens and execute the bill of sale. Freeman did not acquire title since Dillin had no title. Haynes v. Howe, 230 S.W. 248 (Tex.Civ.App., El Paso 1921, no writ hist.); 50 Tex.Jur.2d, Sales, § 274, pp. 651-652.

Since Freeman merely gave Dillin credit on a debt as consideration for his purchase, he was not a bona fide purchaser for value. He had notice of Hill’s ownership by reason of the letter to Wun-derlich, if he saw it prior to purchasing the ovens, a fact not clearly established by the evidence, and made no inquiry as to title. 50 Tex.Jur.2d, Sales, §§ 255-257. In any event, the evidence does not require a finding that Hill so vested the possession and apparent right to the ovens in Dillin as to estop him from claiming the property. He neither did anything with the intention of misleading Freeman nor was he guilty of negligence calculated to produce a deception. The only evidence of such negligent conduct is the letter to' Wunderlich, which, viewed most favorably to appellant, might have been held as authorizing Dillin to sell the property as agent for Hill. This could not be construed as authorizing the agent to sell for his own benefit. This letter authorized Dillin to arrange a cash sale from Hill to a buyer. It will not support, much less require, a finding of apparent authority to sell. Hill had title to the property, and was entitled to the possession thereof, when he demanded it of Freeman. Seigal v. Warrick, 214 S.W.2d 883 (Tex.Civ.App., Amarillo 1948, writ ref., n.r.e.).

We have carefully reviewed the testimony concerning the market price of the ovens. The testimony of Hill was admissible and supports the finding of the trial court. Other testimony in the record does not so preponderate as to make the finding of the trial court clearly wrong. Lewis v. Miller, 336 S.W.2d 240 (Tex.Civ.App., San Antonio 1960, no writ hist.) ; McCormick and Ray, Texas Law of Evidence, Vol. 2, § 1422, p. 259.

There is no evidence requiring a conclusion that appellee violated, or contemplated violating, any provision of his mortgage with Frost National Bank. The measure of damages applied by the trial court was correct. 14 Tex.Jur.2d, Conversion, § 26, pages 30-32.

The judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: KLINGEMAN, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Anastacio VARGAS, Appellee.
    No. 14613.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 4, 1967.

      Crawford C. Martin, Atty. Gen., of Texas, George M. Cowden, A. J. Carubbi, Jr., R. L. (Bob) Lattimore, Monroe Clayton, Asst. Atty. Gen,, Austin, for appellant.
    Rizik & Lieck, San Antonio, for appellee.
   KLINGEMAN, Justice.

Suit for damages for wrongful conviction and imprisonment, by Anastacio Vargas, appellee here, against the State of Texas, appellant here, under the provisions of Art. Ill, Sec. 51-c, Tex.Const., Vernon’s Ann.St., and Vernon’s Ann.Tex.Pen.Code Art. 1176a (1966), herein referred to as the “Act.” Trial was by the court without a jury and judgment was rendered awarding appellee $20,000.00 in damages for physical and mental pain and suffering.

In 1925, appellee was indicted and tried for the murder of Louisa Garcia, and upon trial was found guilty and his punishment assessed at life imprisonment. Upon appeal, this conviction was set aside and the cause remanded for a new trial. In 1926, he was again found guilty, and his punishment fixed at death. In both of such trials appellee plead not guilty. On November 2, 1927, he was sentenced to death by electrocution. A stay was granted about four hours prior to execution, and his sentence commuted to life imprisonment. Subsequently, on October 21, 1929, appellee was granted a full pardon. Appellee was in confinement for about four years, approximately two of which were in the State Prison.

Appellant, by three points of error, contends that: (a) the finding by the trial court that Vargas is not guilty of the crime for which he was sentenced is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong; (b) there is no evidence to support the finding by the trial court that Vargas sustained damages in the sum of $20,000.00; (c) the trial court erred in admitting and considering, on the question of guilt or innocence of Vargas, that part of the pardon which referred to certain opinions and investigations of unnamed Bexar County peace officers, in that this evidence was hearsay.

The only witness who testified at the damage suit as to whether Vargas was guilty or not was Vargas himself, who testified that he did not kill Louisa Garcia. There is testimony to the effect that all of the other witnesses who testified at the murder trial are either dead or that the State was unable to locate them after diligent search. The trial court observed the demeanor and conduct of appellee while on the witness stand, and also had before it the records of the two murder trials. We have carefully examined all of such records. The testimony in the murder trial is conflicting and cannot be said to be conclusive of the guilt of Vargas. The trial court’s finding in the case before us that Anastacio Vargas is not guilty of the crime for which he was sentenced is sufficiently supported by the evidence, and appellant’s point of error that the finding of the trial court is so against the overwhelming weight and preponderance of evidence as to be clearly wrong is overruled.

Appellant’s point of error as to damages is a “no evidence” point. “ ‘No evidence’ points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.” Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 361, 362 (1960).

The record discloses that appellee was imprisoned for about four years, of which approximately two years was in a State penitentiary, and that he was on “death row” two months and five days. On the day set for his execution, his head was shaved, he was served his “last meal,” .and was shown the coffin in which he was to be buried. He testified that he had a wife and two children at the time of his imprisonment, that he never got to see them, that he worried about them greatly, and that after the death cell experience it was hard for him to remember because of the mental anguish he had suffered. The trial court’s finding that Vargus suffered extreme physical and mental pain and suffering as a proximate result of his erroneous conviction and imprisonment, and that he sustained damages in the sum of $20,000.00, is sufficiently supported by the record, and appellant’s “no evidence” point is overruled.

Appellant’s other point of error is the alleged error of the trial court in admitting and considering certain matters contained in the pardon, over appellant’s objection to its admission and consideration as being hearsay evidence and therefore incompetent. The Act provides that the pardon or proclamation issued by the Governor is admissible in. evidence. When the pardon was offered into evidence, appellant stated that it had no objection to the introduction of the pardon itself, but as to the truth of the contents, appellant objected to it as being hearsay and to its being any evidence of appellee’s innocence. The ,trial court admitted such evidence, but reserved ruling on “whatever the law is.” The record does not show that the trial court made any subsequent ruling in regard thereto. There is no evidence in the record that the trial court considered any hearsay matter contained in the pardon.

Where the record discloses evidence sufficient to support the judgment, without resort to evidence admitted over appellant’s objection, error, if any, was harmless, in view of the presumption that the trial court considered only admissible evidence supporting the judgment. Stevens Bros. v. Mills, 336 S.W.2d 921 (Tex.Civ.App.—Beaumont 1960, writ ref’d n. r. e.); Hoffman v. Tolbert, 327 S.W.2d 604 (Tex.Civ. App.—Texarkana 1959, no writ); Brewer v. Ross, 275 S.W.2d 132 (Tex.Civ.App.—El Paso 1954, no writ); Rubenstein & Son Produce v. State, 272 S.W.2d 613 (Tex.Civ.App.—Dallas 1954, writ ref’d n. r. e.); Texas Employers’ Ins. Ass’n v. Polk, 269 S.W.2d 582 (Tex.Civ.App.—Eastland 1954, writ ref’d n. r. e.).

All of appellant’s points of error are overruled. The judgment of the trial court is affirmed.


author: HOWARD, Presiding Judge.

text:
    STATE of Missouri ex rel. Franklin D. LEE, Relator, v. David T. CAVANAUGH, Judge of the Circuit Court of Jackson County, Missouri, Respondent.
    No. 24491.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Eugene P. Wilhelmsen, Blackford & Wil-helmsen, Kansas City, for relator.
    Piedimonte & Cochran, William A. Pied-imonte, Thomas D. Cochran, C. William Kramer, Independence, for respondent.
   HOWARD, Presiding Judge.

This is an original proceeding in prohibition. The questions presented arise out of the examination of Mr. Lee as a judgment debtor, pursuant to statute. Mr. Lee, as a witness, was very evasive and claimed not to remember many things which the ordinary person would remember. The facts surrounding Mr. Lee are not at all clear from this record, but we believe that the record does show that Mr. Lee made his living by lecturing or talking to various people and groups on the subject of “celestial law” — “the law of the eternal”. Some of the people to whom he spoke made gifts of money, food and produce. Lee was unable to remember the names of any of the people who had made gifts to him, with one or two exceptions. He refused to answer whether or not he had filed federal or state income tax returns for the years 1963 and 1964 on the grounds that the answer might incriminate him. Further in the examination it appeared that he had recently purchased a 1960 or 1962 Rambler automobile in Bay City, Michigan, and that three people had loaned him the money to buy the car. He was then asked the names of the people who had loaned him the money. He refused to answer this question on the ground that it might incriminate him. When asked by the court how it might incriminate him, he answered “because they might think I had money”. The ultimate result was that the court held Mr. Lee in contempt. On request of counsel, the court delayed the issuance of the commitment until application could be made to this court for prohibition. Such application was made and our preliminary writ duly issued.

We set forth the proceedings leading up to the finding of contempt as follows:

“Q To whom are you going to make the payments on the car? A The people that loaned the money.
Q Do you know for sure who that was? A No, I don’t; there is three of them.
Q Three people? A Three different people. They wired the money to me.
Q Who are they? A I refuse to answer on the grounds that it might incriminate me.
THE COURT: Mr. North, are you going to pursue the question further?
MR. NORTH: Yes, Sir.
THE COURT: Proceed.
Q Who were the people that gave you the money to purchase this Rambler ? A I said I refused to answer that; it might incriminate me.
Q You refuse to answer? A Yes.
MR. NORTH: I ask the Court to instruct the witness to answer the question.
THE COURT: How do you feel that this would incriminate you, Mr. Lee; in what way ?
THE WITNESS: Because they might think I had money.
THE COURT: It isn’t against the law to have money.
THE WITNESS: I don’t have any.
THE COURT: The point is, it is not against the law to have money; there is nothing criminal about having money.
THE WITNESS: But I don’t have any money.
THE COURT: Well, the point is you received money from three people to buy a car. Now, this lawyer is entitled to know the names of those people under the proceeding that is now before this Court, and there is nothing that would incriminate you to reveal the names of those witnesses, those people that gave you this money. The Court is instructing you to answer those questions.
THE WITNESS: I refuse to answer, that it might incriminate me.
THE COURT: You understand you are attempting to make a farce out of this court and I don’t appreciate it. You have been advised by counsel here that unless you answer these questions you are subjecting yourself, putting yourself in contempt of this Court, and I have the right to confine you in jail until you purge yourself of that contempt. Have you been so advised ?
THE WITNESS: I talked to my attorney about it; Yes, sir. I am answering, Your Honor, as to the best of my ability.
THE COURT: You are telling this Court that three people gave you money to buy a car, and you say to have money would incriminate you. Now, how do you say that?
THE WITNESS: I don’t have money, Your Honor.
THE COURT: They gave you money to buy the car?
THE WITNESS : They loaned me the money on the car.
THE COURT: He wants to know the names of those three people.
THE WITNESS: I couldn’t give it to him.
THE COURT: Why can’t you give it to him?
THE WITNESS: Because—
THE COURT (interrupting) Because what?
THE WITNESS: I don’t know one of them.
THE COURT: You don’t know the people that gave you money to buy the car?
THE WITNESS: No.
THE COURT: The Court doesn’t believe that testimony and you are attempting to make a farce out of the proceedings of this court. You know who those people are.
THE WITNESS:' Please, I don’t know one of them.
MR. WILHELMSEN: Do you know the names?
THE WITNESS: I talked to them and they said, “Don’t mention it”.
THE COURT: I am not interested in what they said. You know their names and you have been instructed by this Court to answer this question and to give those names.
THE WITNESS: I know one name. The people that wired the money or mailed the check — I guess it was a check— to me, is all.
THE COURT: You state the names. What are the names of those people? I am speaking to you, Mr. Lee, and asking you to answer the question and if you don’t answer it I am going to find you in contempt of Court and I am going to put you in jail.
THE WITNESS: That, Your Honor, I cannot help.
THE COURT: Are you refusing to answer that question?
MR. WILHELMSEN: May I counsel with the witness?
THE COURT: Yes, you may.

(Whereupon, counsel and witness conferred without the hearing of the Court.)

THE COURT: The Court has instructed you, Mr. Lee, to answer the question and give the names of these people, and you say that you refuse to do it because it might incriminate you, and you state that the only reason it might incriminate you would be that you had money. The Court has determined that it is not against the law and it is no criminal offense to have money. Now, you are instructed to answer that question, and unless you do answer it I am going to find you in contempt of Court and I am going to order you committed to jail until you purge yourself of this contempt. Now, do you still refuse to answer the question ?
THE WITNESS: What was the question?
THE COURT: Mr. Harder, read the last question, please.

(Whereupon, the last question was read by the reporter as follows: “Who were the people that gave you the money to purchase this Rambler ?”)

THE WITNESS: I refuse to answer because it might incriminate me.
THE COURT: On what grounds would it incriminate you?
THE WITNESS: Criminally.
THE COURT: In what way?
THE WITNESS: I refuse to answer that because it might incriminate me.
THE COURT: Well, the Court has determined that it would not incriminate you, and you are ordered to answer the question, and if you refuse to answer it I am going to commit you to jail. Do you refuse to answer the question ?
THE WITNESS: Well, Your Honor, you have the right of all things.
THE COURT: The question the Court has put to you is, Do you refuse to answer the question?
THE WITNESS: I couldn’t answer it.
THE COURT: The Court finds you in contempt and is going to order you committed to jail for contempt, and until you purge yourself of contempt you will remain in jail.”

It is now well settled that the privilege against self incrimination as it appears in both the federal and state constitutions is applicable to the examination of judgment debtors under our statutes, and that such judgment debtors when being so examined are privileged to refuse to answer questions which might incriminate them. See State ex rel. North v. Kirtley, Mo., 327 S.W.2d 166; State ex rel. Strodtman v. Haid, 325 Mo. 1137, 30 S.W.2d 466; Ex parte Meyer, Mo.App., 18 S.W.2d 560.

The question here presented is whether or not, on the record as heretofore set out, the relator Lee had a right to refuse to answer the question as to the names of the people who loaned him the money to buy the automobile. Such answer would appear on the face of these proceedings to he harmless and one which would not tend to incriminate. However, the privilege is not limited to questions which would require an answer completely revealing guilt of a crime. On the contrary, the privilege extends to questions whose answers might disclose facts which could form a link in a chain of evidence, which would result in convicting the witness of a crime. See State ex rel. North v. Kirtley, Mo., 327 S.W.2d 166; State ex rel. Strodtman v. Haid, 325 Mo. 1137, 30 S.W.2d 466; Ex parte Meyer, Mo.App., 18 S.W.2d 560; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264. The scope of the privilege was well set out by this court in Presta v. Owsley, Mo.App., 345 S.W.2d 649, where the court in discussing its evience said, 1.c. 652:

“The problem presented is not new. It has several times been considered and ruled by the Supreme Court of the United States, by various federal courts and by the appellate courts of this state and other states. In the Burr case, decided in 1806, 25 Fed.Cas. pages 38, 40, No. 14,692e generally followed by the courts, Chief Justice Marshall said: ‘ * * * if the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact. * * * It is certainly not only a possible but a probable case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is com-pellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any individual the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws.’
“In Ex parte Gauss, 223 Mo. 277, 122 S.W. 741, 742, the Supreme Court of this state approved the doctrine announced by Chief Justice Marshall in the Burr case, and held that such rule was entirely consistent with the doctrine generally held that when the court can say as a matter of law that it is impossible that the witness would incriminate himself by answering a question one way or the other, then the court can require an answer; but not otherwise. The court quoted with approval the following language from People v. Mather, 4 Wend., N.Y. 229, loc. cit. 252, 21 Am. Dec. 122: ‘The witness knows what the court does not know, and what he cannot communicate without being a self-accuser, and is the judge of the effect of his answer, and if it proves a link in the chain of testimony, which is sufficient to convict him, he is protected by law from answering the question. If there be a series of questions, the answer to all of which would establish his criminality, the party cannot pick out a particular one, and say, if that be put, the answer will not criminate him. If it is one step having a tendency to criminate him, he is not compelled to answer.’ ”

Even though the answer to the question would appear to be innocent on the face of the record, it might still, in fact, reveal matters which could lead to the conviction of the defendant, and if this is so the witness may claim the privilege. In the instant case relator argues that if he were to reveal the names of the people who loaned him the money with which he purchased the car, it might form a link in a chain of evidence which could result in his conviction of income tax violation, and which might show association with those who are guilty of crimes and such association might lead to evidence implicating the witness in their crimes.

Relator further argues that the giving of the names required by the question might lead to evidence showing that the money the witness received was known by him to be stolen, or that the loan might be a sham and it might constitute earned money which would subject him to income tax prosecution. On this basis it would appear that the relator was justified in claiming the privilege. It also occurs to the writer that the answer might form a link in a chain of evidence sufficient to convict relator of a crime involving fraud in procuring the loan.

This court in Ex parte Arvin, 232 Mo.App. 796, 112 S.W.2d 113, pointed out that unless the court can find as a matter of law that the answer to the question would not tend to incriminate the witness, such answer can not be compelled. In other words, the witness can successfully claim his privilege against self incrimination unless and until the court can say, as a matter of law, that the answer could not possibly reveal facts which might form a link in a chain of evidence leading to the conviction of the witness for a crime. See Ex parte Holliway, 272 Mo. 108, 199 S.W. 412; Presta v. Owsley, Mo.App., 345 S.W.2d 649; Rogers v. United States, C.A. 10, 179 F.2d 559; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; United States v. Coffey, C.A. 3, 198 F.2d 438.

In the present case it is apparent that the court determined as a matter of law that the answer would not incriminate relator. This was apparently based on the following question and answer. “THE COURT: How do you feel that this would incriminate you, Mr. Lee; in what way? THE WITNESS: Because they might think I had money.”

The Court then pointed out that the mere possession of money was not a crime and insisted that the answer of the question could not, as a matter of law, incriminate relator. We must remember that this oc-cured after relator had specifically refused to answer the question on the ground that it might' incriminate him. The cases heretofore cited point out that the privilege extends not only to refusing to answer the question asked, but to refusing to explain how the answer might incriminate the witness.

We believe that the trial court’s interpretation of the witness’s claim to privilege was too narrow. In Rogers v. United States, 10 Cir., 179 F.2d 559, the court expressed the test as follows, 1. c. 562: “From an analysis of these cases, we conclude the rule to be that the witness is not the sole judge as to whether his answer will tend to incriminate him; that when the question arises, it is for the court to determine from all the facts whether the question is of such a nature as might reasonably be expected to incriminate the witness, depending upon the answer thereto. If there is reason to believe that the answer might tend to incriminate the witness, he cannot be compelled to answer; neither can he be required to state why the answer might tend to incriminate him, because that would in itself to some extent constitute giving testimony against himself. Furthermore, a witness may not be required to give an answer which furnishes a link in a chain which would enable the Government to obtain the facts showing his guilt of a crime. It is also clear, from all the cases, that a witness may not refuse to answer because his answer might tend to incriminate others.” Then concerning some of the several cases being considered, the court said: “Under these circumstances she [the witness] alone know whether her answer would incriminate her and she was not required to answer nor was she required to furnish any fact in explanation of her refusal to answer, which would give the Government a lead * * * ” in determining whether or not she was guilty of a crime.

We do not believe, taken in context, the statement of relator that the answer to this question might incriminate him “because they might think I had money” expressed the complete scope of the danger of incrimination. In limiting its subsequent determination of contempt to this one aspect of the testimony, we believe that the trial court erred. As heretofore mentioned, there are many other ways which readily appear in which the answer might tend to incriminate relator. Further, if in fact the money was stolen, the mere fact of having the money might tend to incriminate the witness, and in such a situation, obviously the names of the people from whom he received such stolen money might be within the privilege as forming a link in a chain of evidence which would convict relator. While it is admitted that the witness cannot claim the privilege when there is no rational basis upon which it could conceivably tend to incriminate him, if such rational basis is shown, then the court cannot find, as a matter of law, that the answer will not incriminate the witness, and the witness can then claim his privilege and cannot be compelled to testify.

This matter was carefully considered by Judge Hastie for the Third Circuit Court of Appeals in United States v. Coffey, 198 F.2d 438, quoted with approval in Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, note 18, page 692, 99 L.Ed. 997. Judge Hastie said: “Specifically, we think the problem is what to do about apparently innocuous questions, the answers to which are admittedly not incriminating in themselves, when there are no additional facts before the Court which suggest particular connecting links through which the answer might lead to and might result in incrimination of the witness. We think the Supreme Court is saying that such facts are not necessary to the sustaining of the privilege. The decision in the Mason case would not be followed today. It is enough (1) that the trial court be shown by argument how conceivably a prosecutor, building on the seemingly harmless answer, might proceed step by step to link the witness with some crime against the United States, and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case. It is in this latter connection, the credibility of the suggested connecting chain, that the reputation and known history of the witness may be significant.

“Finally, in determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical; rather must he be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.”

Admittedly the witness must claim his constitutional right against incrimination before he is entitled thereto, and once he has admitted facts which tend to completely incriminate him, he cannot thereafter claim the privilege against the details. Likewise, where the witness refuses to answer the broad incriminating question on grounds other than his constitutional privilege against self incrimination, he cannot thereafter claim the constitutional privilege against self incrimination as to details. See Ex parte Holliway, 272 Mo. 108, 199 S.W. 412; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344. While these two cases and others like them often speak of waiver of the privilege, the decisions appear to be, in fact, grounded on the doctrine that once the witness has admitted the whole of an incriminating situation, testimony as to the details cannot further incriminate the witness, and thus the court can say, as a matter of law, as to such detail questions, that the answer cannot further incriminate the witness, or as the Supreme Court said in Rogers v. United States, supra, the answer to the detailed questions do not add “any real danger” of further incrimination of the witness.

Respondent has relied upon the holding in Ex parte Holliway, supra, to say that the court in this instance could determine as a matter of law that the answer to the question could not incriminate relator. Respondent’s argument goes to the effect that: relator has admitted that he received the money with which to buy the car; he says that the answer to the question might incriminate him “because they might think I have money” and he has already admitted having the money with which he purchased the car; therefore the names of the people who loaned him the money constitute mere details and relator cannot claim the privilege to such details, because by answer to the broad general question of having money, he has completely incriminated himself and has therefore waived the privilege as to the details, or, as more properly stated, the court in such circumstances could and did properly hold, as a matter of law, that the answer would not incriminate him. What we have heretofore said about the possible incriminating aspects of relator’s answer disposes of this argument.

Respondent contends that by his conduct relator waived the privilege against self incrimination. After having completely and properly claimed the privilege, relator then stated that the answer might incriminate him “because they might think I had money”. He then stated that he could not give the names of the three people who loaned him the money with which to buy the car because (1) “I don’t know one of them,” and (2) “I talked to them and they said ‘don’t mention it.’ ” Relator then said, “I know one name”. He later declared, “I could not answer it”. Such equivocation is no doubt exasperating and frustrating, both to the court and counsel. However, after the witness has properly invoked the protection of his constitutional privilege against self incrimination, a waiver of such privilege will not be held to have occurred upon vague and uncertain .evidence. Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264. In Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997, it was held that the court would indulge every reasonable presumption against waiver and that a waiver would not be declared unless it clearly appeared that the witness intended to and did knowingly waive his rights.

Although relator has not seen fit to answer respondent’s argument as to waiver, we hold on the basis of the foregoing authority that the uncertain and ambiguous statements of relator were not sufficient to waive the privilege which he had theretofore unequivocally claimed.

Respondent also contends that relator was an evasive, recalcitrant and vexing witness, who from the outset tried the patience of the court, and that the contempt citation was in process of growth from early in the proceeding “and was not predicated solely” upon relator’s refusal to answer the question as to the names of the three people who loaned him the money to buy the car. Undoubtedly, a witness, who by vagueness and refusal to remember is obviously attempting to prevent any real inquiry, can, as a consequence of such conduct, be adjudged guilty of contempt. This was set out by Judge Learned Hand more than fifty years ago in his opinion as a district judge in United States v. Appel, D.C., 211 F. 495, cited with approval by the United States Supreme Court in Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589. Judge Hand said: “The rule, I think, ought to be this: If the witness’ conduct shows beyond any doubt whatever that he is refusing to tell what he knows, he is in contempt of court. That conduct is, of course, beyond question when he flatly refuses to answer, but it may appear in other ways. A court, like anyone else who is in earnest, ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test. For instance, it could not be enough for a witness to say that he did not remember where he had slept the night before, if he was sane and sober, or that he could not tell whether he had been married more than a week. If a court is to have any power at all to compel an answer, it must surely have power to compel an answer which is not given to fob off inquiry. Nevertheless, this power must not be used to punish perjury, and the only proper test is whether on its mere face, and without inquiry collaterally, the testimony is not a bona fide effort to answer the questions at all.”

We agree with Judge Hand and while, possibly, the trial court might have held relator in contempt for his generally recalcitrant conduct, it did not attempt to do so. It is apparent from the record that the citation for contempt was not based upon this broad general ground, but on the narrow ground of relator’s refusing to answer the question calling for the names of the three persons who loaned him the money with which to buy the car.

For the reasons heretofore set out we conclude that relator validly claimed his constitutional privilege against self incrimination and cannot legally be required to answer this question. Further, we hold that relator did not waive the privilege.

Therefore, our preliminary writ in prohibition is hereby made absolute.

All concur.

      . See, Ex parte Arvin, 232 Mo.App. 796, 112 S.W.2d 113; Ex parte Gauss, 223 Mo. 277, 122 S.W. 741; United States v. Burr, 25 Fed.Cas. page 38, No. 14,692e, 1 Burr’s Trial 244; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; State v. Young, 119 Mo. 495, 24 S.W. 1038; State ex rel. Attorney General v. Simmons Hardware Co., 109 Mo. 118, 18 S.W. 1125, 15 L.R.A. 676; Ex parte Carter, 166 Mo. 604, 66 S.W. 540, 57 L.R.A. 654; Ex parte January, 295 Mo. 653, 246 S.W. 241.


author: CROSS, Judge.

text:
    Irven Lee MARTIN, III, Plaintiff-Respondent, v. Carl J. YEOHAM, Defendant-Appellant. Irven Lee MARTIN, III, Appellant, v. David MARKOWITZ, Respondent.
    Nos. 24527, 24526.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Thomas M. Howell, Kansas City, for Ir-ven Lee Martin, III.
    George W. Meyer and Roger W. Penner, Meyer, Smith & Penner, Kansas City, for Carl J. Yeoham.

      George W. Meyer and Roger W. Penner, Meyer, Smith & Penner, Kansas City, for David Markowitz.
   CROSS, Judge.

On July 20, 1963, plaintiff Irven Lee Martin, III received a bullet wound from a revolver fired by defendant Carl J. Yeo-ham. Thereafter plaintiff filed this action for personal injury damages against three defendants, to-wit: Carl J. Yeoham, his wife, Mary Yeoham, and David Markowitz. Plaintiff undertook to recover damages from defendant Carl J. Yeoham on the ground that he was negligent in firing the weapon and inflicting the wound, and from defendants Mary Yeoham and David Mar-kowitz on the theory they were partners of defendant Carl J. Yeoham as owners and operators of a tavern, and consequently liable for his allegedly negligent acts. Defendants Mary Yeoham and Carl J. Yeo-ham each filed counterclaims against plaintiff for damages for alleged assault and battery committed upon Mrs. Yeoham by plaintiff. During the course of trial to a jury plaintiff dismissed his action as to defendant Mary Yeoham and the defendant Carl J. Yeoham dismissed his counterclaim against plaintiff.

The jury returned a $10,000.00 verdict for plaintiff against both defendants Carl Yeoham and David Markowitz, and found against Mary Yeoham on her counterclaim against plaintiff. Judgment was rendered accordingly. Thereafter, on motion by defendant Markowitz, the trial court set aside the $10,000.00 verdict and judgment rendered against him and entered, judgment in his favor. Separate appeals have been taken by plaintiff and defendant Carl J. Yeoham. Plaintiff appeals from the judgment entered in favor of defendant Markowitz and defendant Yeo-ham appeals from the $10,000.00 judgment in plaintiff’s favor. No appeal has been taken by Mary Yeoham from the adverse judgment on her counterclaim.

Plaintiff’s petition contains allegations in substance as follows: that defendants (Carl Yeoham, Mary Yeoham and David Marko-witz) were owners and operators of the Sunnyside Tavern at 4343 Troost Avenue in Kansas City, Missouri; that defendants Carl Yeoham and Mary Yeoham were in active charge and control of that business and handled the money; that on or about July 20, 1963, while defendants Carl Yeo-ham and Mary Yeoham were transporting the partnership business receipts, checks, funds and moneys from the Sunnyside Tavern to their home at 215 E. Linwood, defendant Carl Yeoham “carelessly and negligently discharged a loaded pistol directly in plaintiff’s face,” thereby directly and proximately causing him bodily injury; that defendant Carl Yeoham was careless and negligent (a) in moving partnership assets in the nighttime over public streets while armed with a deadly weapon; (b) in failing to exercise ordinary care to avoid discharging a deadly weapon at an innocent person at the time and place in question; (c) in failing to exercise ordinary care to ascertain that plaintiff was an “innocent person”; and (d) in “attempting to kill a human being” without first ascertaining his identity; that the negligence of defendant Carl Yeoham was directly attributable to the partnership, and that each member thereof is directly responsible therefor; that the partnership and its members were negligent in permitting Carl Yeo-ham to transport partnership receipts, funds and moneys, in an automobile over public streets in the nighttime, while possessing a deadly weapon, knowing he was likely to become nervous and discharge such weapon at an innocent person without sufficient cause; and that “said partnership” and each member were negligent in permitting the use of unlicensed firearms in the partnership business in transporting partnership funds over public streets in the nighttime.

Defendants Carl Yeoham and David Markowitz filed a separate joint answer to plaintiff’s petition in which they denied generally its allegations, admitted ownership of the Sunnyside Tavern and pleaded affirmatively to the effect that at the time in question defendant Carl J. Yeoham and his wife Mary were returning to their apartment home at 215 East Linwood Boulevard in their automobile; that upon arrival Mary Yeoham undertook to alight from the automobile, carrying the day’s receipts from the tavern and some groceries; that as she started to move from her seat, plaintiff, a young and powerful man and a total stranger, rushed up to the open door of their automobile, suddenly grabbed the clothing and person of Mary Yeoham and violently and repeatedly attempted to pull her from the automobile, thereby committing an assault and battery upon her and putting defendant Carl Yeoham and his wife in great fear of suffering great bodily harm and of being robbed of their property; that while “this assault” was going on other young men approached the Yeo-ham automobile on the driver’s side, also contributing to the fear and apprehension of the Yeohams; that while the alleged assault and battery were being committed and .while defendant Carl J. Yeoham was convinced and believed under all attending facts and circumstances that he and his wife were in imminent danger of great bodily harm and of being robbed, defendant Carl J. Yeoham “came to the defense of his wife and himself and fired one shot from a pistol in the direction of the plaintiff for the purpose of repelling the attack being made by the plaintiff and saving his wife and himself from bodily harm and from being robbed of their possessions;” that by reason of the attendant facts and circumstances the firing of the pistol shot was justified and was not an act for which defendants are liable under the law; that any injury suffered by plaintiff was the direct and proximate result of his own negligence in rushing up to and seizing the person of Mary Yeoham and that plaintiff voluntarily assumed the risk of his rash and intemperate conduct.

Inasmuch as plaintiff dismissed his action as to defendant Mary Yeoham during the trial there is no need of reference to her answer to his petition.

There is severe conflict between the evidence of plaintiff and defendants relating to material facts and controlling issues. Plaintiff’s version of the events leading up to the shooting is substantially as here set out: On the night in question plaintiff, then a young man 21 years of age, went to the Combo Club, a night spot, located at 6536 Troost. He arrived there at approximately nine o’clock P.M. and remained until one-thirty A.M. — “about four and a half hours.” During that time he drank beer and Scotch whiskey, and “danced and just congregated” with other young persons of his acquaintance, both men and women. Plaintiff left the Combo Club as a passenger in a car with four other young men intending to go to a party which was in progress at an apartment located on Warwick and Linwood (near the vicinity of the Yeohams’ apartment). The car in which plaintiff rode was a rust colored Ford of somewhat ancient vintage, belonging to and driven by one Bradford. The other three men in the car were Bert Rook-huyzen, Thomas Dye and Bob Chrane. Three additional cars occupied by plaintiff’s acquaintances accompanied the Bradford car, making in all a procession of four cars proceeding to the party. At a traffic light approximately two blocks from War-, wick and Linwood a Buick automobile in which the Yeohams were riding to their apartment home (as plaintiff later learned) in some manner fell in line with the “chain” of cars en route to the party. Arriving at the vicinity of Warwick and Linwood, these vehicles parked at various places. The Yeoham Buick parked at the entrance of an apartment building immediately in front of two unoccupied and unlighted automobiles previously parked at the south curb of Linwood and the Bradford car parked behind these vehicles, approximately fifty feet from the Yeoham Buick. After some discussion with the other occupants of the Bradford car as to the exact location of the party, plaintiff got out of the car and “trotted” forward to the Yeoham Buick to inquire of its occupants as to where the party was located. His fellow passenger, Bert Rookhuyzen, also alighted from the Bradford car and followed plaintiff as he proceeded to the Yeoham car. Just as plaintiff reached the Yeoham car, the front door on the passenger’s side opened, and a light came on inside. He put one hand on top of the open door, put the other hand on top of the car and bent down to ask the occupants where the party was. He assumed that they were persons going to the party. He denied putting his hands on the woman inside the car and pulling her forward and stated that he didn’t get a chance to say anything to “these people”. He testified, “I bent down and I didn’t get anything out. And as soon as my head went in view all that I remember is a tremendous flash and I fell back staggering.” Plaintiff testified at considerable length concerning the nature and extent of his injuries resulting from the gunshot wound. However, our discussion of appeal issues will not require that his testimony in that respect be noted herein.

Bert Rookhuyzen testified that he was following plaintiff to the Yeoham car before the shot was fired. He was about 25 feet behind plaintiff. The witness didn’t remember if any one else from the Bradford car was following him at the time but admitted there might have been. He also admitted he had made a statement to the police that “When Irwen Martin jumped out of the car and got about 15 feet down the street I jumped out and followed him and Thomas Dye followed me.” Rook-huyzen stated he saw the door to the Yeo-ham car open as plaintiff came up, saw plaintiff standing between the car and the car door with one hand on the car top and the other hand in the car door and observed him start to bend down. At that time Rook-huyzen heard a shot fired and saw that plaintiff was shot in the face. The witness heard Yeoham tell Mrs. Yeoham to go in and call the police and saw her emerge from the car and go into the apartment house. Yeoham locked the car doors and remained sitting in the car with his gun pointed at Rookhuyzen until the police came.

Thomas Dye testified on behalf of plaintiff as another witness to the shooting. He stated he had been a passenger in the Bradford car and was standing beside it, 50 feet away from plaintiff, when Yeoham fired the shot. When that occurred plaintiff had one hand on the door of Yeoham’s car, which was open about a foot and a half, and he had his head down looking inside the car but had not reached into the automobile. On cross-examination the witness testified that “everybody.. had been drinking” at the Combo Club, that he was “pretty happy” and admitted he had stated in his deposition that he was “tight”.

Other witnesses produced by plaintiff testified relative to the activities of plaintiff and his acquaintances at the Combo Club, that there was a party in progress at an apartment occupied by three women in the vicinity of Linwood and Warwick, and that plaintiff and his friends, “about 10 couples”, were expected at the party. This testimony is not here set out because we regard it as immaterial to the appeal' issues.

Carl Yeoham testified on behalf of defendants in substance, as follows: On and long prior to July 20, 1963, defendants Carl Yeoham and David Markowitz owned the Sunnyside Tavern, located at 44th and Troost, in Kansas City, Missouri. Defendant Markowitz took no part in managing the business. The tavern was operated by Carl Yeoham assisted by his wife, Mary. On the night of July 20th, 1963, Yeoham closed the tavern at about 1:30 A.M., got into his car with Mrs. Yeoham, and started home with the day’s receipts consisting of cash and checks. He drove the automobile to his apartment at 215 East Linwood Boulevard, and stopped and parked in front of it, as he usually did. He saw no persons on Linwood and there were no cars close to where he stopped and parked. Mrs. Yeo-ham, carrying groceries and the day’s receipts in a sack, opened the door to get out to go up to the apartment and as she did so “some man” (later identified as plaintiff) suddenly appeared and grabbed her around the neck and shoulders and yanked on her and tried to pull her out of the car. Yeoham tried to pull his wife back in the car, but the man still “had a hold of her” and then Yeoham reached for his revolver which he customarily carried in the seat of the car. As he did so, he heard footsteps of persons running up to the driver’s side of the car and he got a glimpse of them out of the corner of his eye. There were more than one, a “couple” or “several” men. During this time the man who had grabbed his wife had said nothing. Yeoham thought that “he would drag her out of the car and beat her and kick her and maybe kidnap her and also the same to me. I thought that he would pull me out of the car or beat me or kidnap me. I didn’t know.” In that state of mind Yeo-ham fired one shot in the direction of plaintiff, “to stop him.” When the shot was fired plaintiff had Mrs. Yeoham around the neck and his head was in the door of the car. The bullet struck him in the face. Yeoham said, “I was not particularly shooting at his face. I was just firing the gun to stop him.”; that he fired the shot “To protect my wife and myself from harm * * * maybe beat up, kicked. I had to stop it, and the only way that I had to stop it was by firing the gun. * * * The car was surrounded, and they had her * * * part way out of the car, and I couldn’t drive off. There was no place to go.” Asked on cross-examination whether he thought that he was going to be robbed Yeoham answered, “I was not thinking too much about robbery at that time. I was thinking about the safety of my wife and to myself. At the time I gave the money no thought — I didn’t intend for me to be harmed or for my wife to be harmed.” Immediately after the shot was fired, and at her husband’s direction, Mrs. Yeoham got out of the car— still carrying the groceries and tavern receipts — ran up to her apartment and called the police. Yeoham locked the car doors and stayed in the car holding his revolver until the police came. The men who had come up on the driver’s side ran on down the street when the shot was fired but soon returned. Two of them followed Mrs. Yeo-ham into the apartment. Altogether there were four other than plaintiff, namely, the previously referred to Bradford, Rook-huyzen, Chrane and Dye. They were belligerent, dressed casually and slovenly in appearance. At the time of the incident Yeoham was 59 years old, had a crippled leg and was not in good health. His testimony as to the shooting and circumstances surrounding it were corroborated by Mrs. Yeoham whose testimony in those particulars was essentially the same as her husband’s.

Robert Edwards, a police officer on patrol duty with another officer, testified he arrived at the scene of the shooting within two or three minutes after it happened. Plaintiff was lying on the sidewalk. Yeo-ham was in the car with the doors closed. He was quiet and cooperative and appeared to be scared. Four young men — Dye, Rookhuyzen, Chrane and Bradford — were around the car. They were taken to the police station for questioning. The officer testified that they had been drinking, that their clothing was mussed and that the police-'had trouble with a couple of them. The rust colored Ford (the Bradford car) was not found parked at -the curb. “It was not at the street at all.” It was in the driveway of á house located west beyond the Yeoham apartment near the back of the backyard in the rear of the house.

Plaintiff’s verdict directing instruction (No. 2) reads as follows:

“Your verdict must be for plaintiff Irven Lee Martin, III, and against defendant Carl J. Yeoham on plaintiff’s claim for damages, if you believe:
First, that defendant Carl J. Yeoham discharged a loaded pistol in the direction of plaintiff, and
Second, that defendant Carl J. Yeoham was thereby negligent, and
Third, that as a direct result of such negligence plaintiff Irven Lee Martin, III, sustained damage.
You are further instructed that your verdict must be for plaintiff Irven Lee Martin, III, and against defendants Carl J. Yeoham and David Markowitz, if you believe the matters above set out and, if you believe:
Fourth, that the defendant Carl J. Yeo-ham was so acting in the ordinary course of the business of the Sunny-side Tavern partnership.
Unless you believe that the plaintiff Irven Lee Martin, III, is not entitled to recover from either defendant by reason of Instructions numbered 5 or 6.

(Given) RHK J MAI 17.01 Mod. Offered by plaintiff.”

On behalf of defendants the court gave Instruction No. 4 conversing the issue of negligence and. additionally Instructions No. 5 and 6 submitting the affirmative defenses of contributory negligence and justification (defense of himself and his wife) as follows:

“INSTRUCTION NO. 5
Your verdict must be for defendants on plaintiff’s claim for damages if you believe:
FIRST, that plaintiff Irven Lee Martin, III, appeared suddenly and without warning, confronted Carl Yeoham and Mary Yeoham and caused them to be apprehensive of imminent great bodily harm; and
SECOND, the plaintiff’s conduct, as submitted in Paragraph First, was negligent; and
THIRD, such negligence of the plaintiff directly caused or directly contributed to cause the injuries and damages plaintiff may have sustained.

(Given) RHK J MAI 28.01 Modified. Offered by defendants.”

“INSTRUCTION NO. 6
Your verdict must be for defendants if you believe:
FIRST: Defendant Carl Yeoham had reasonable cause to apprehend and did apprehend bodily harm to his wife and himself, either or both, and
SECOND: Defendant Carl J. Yeo-ham did not create the situation which caused the apprehension of the defendant Carl J. Yeoham, and
THIRD: The act of the defendant Carl J. Yeoham in discharging a pistol at the plaintiff was in defense against this apprehended bodily harm, and
FOURTH: That defendant Carl J. Yeoham used only such force as was reasonable and necessary.
(Given RHK MAI 28.07. Offered by defendants.” .

Our attention is directed first to the appeal of defendant Carl Yeoham from the judgment rendered against him. At the outset, on our own initative, and independently of considerations raised by assignments of error, we find that plaintiff’s theory of the case as pleaded is misconceived and that its submission to the jury was fundamentally erroneous. Despite the fact that the evidence overwhelmingly establishes that Yeoham’s act in firing the shot at plaintiff was intentional, plaintiff undertook to recover on the basis that the act was negligent. This is not permissible under the law as it is generally recognized and as it is applied in Missouri.

It is elementary that the words “negligence” and “intentional” are contradictory and that “negligence” is not synonymous with “intentional action”. 65 C.J. S. Negligence 1(7), p. 451 (citing Gibeline v. Smith, 106 Mo.App. 545, 80 S.W. 964). (See 65A C.J.S. Negligence § 131 p. 110). In Raming v. Metropolitan Street Railway Company, 157 Mo. 477, 57 S.W. 268, a leading and frequently cited case, the Supreme Court, en banc, pointed out the clear distinction between negligence and willful acts, and declared, “If the act complained of is intentional the question of negligence does not arise. If the act be intentional, it becomes fraudulent or criminal, or it may be a trespass.” To the same effect is the holding in Jacobson v. St. Louis Transit Co., 106 Mo.App. 339, 80 S.W. 309, where the court, relying upon the Raming case, observed that “negligent and deliberate injuries could not coexist.” In Boyd v. St. Louis Transit Co., 108 Mo.App. 303, 83 S.W. 287, the court said: “* * * Testimony tending to sustain the charge of negligence and carelessness would negative and disprove willfulness or intentionality, and proof that the wrongdoing on the part of defendant was deliberate would exclude negligence, and contributory negligence would be no defense available to defendant for injury wantonly committed.” And, in Cramer v. Springfield Traction Co., 112 Mo.App. 350, 87 S.W. 24, this court said: “An act cannot be both careless and willful. Negligence is an unintentional act or omission. Willfulness is intentional — an act purposely done, not negligently or carelessly done or left undone; hence, as held by Judge Sherwood in the Raming case, evidence to prove negligence would negative willfulness, and vice versa.” (Our emphasis.)

In McLaughlin v. Marlatt, 296 Mo. 656, 246 S.W. 548, the Supreme Court has clearly distinguished between the right of action for injury caused by an intentional shooting and that arising from an unintentional, negligent shooting. We quote: “Where one person is injured by the discharge of a firearm in the hands of another, he may have an action for assault and battery, if the shooting was intentional; or he may have an action for negligent injury, if the shooting was unintentional and the result of negligence. But the cause of action in the one case is different from that in the other, and both cannot arise on the same state of facts. * * * In an action for personal injuries intentionally inflicted with a firearm, and in one for such an injury unintentionally but negligently inflicted, the plaintiff seeks a recovery for an invasion of the same primary right; but the defendant’s delict in the one case is different from that in the other. As to that different elements of proof are required in the two actions, and the consequences to defendant, as measured by the recoverable damages, are different. Allegations of facts constituting a cause of action for personal injury willfully inflicted will not, therefore, be supported by proof of an injury negligently committed. Heizer v. Mfg. Co., 110 Mo. 605, 617, 19 S.W. 630, 15 L.R.A. 821, 33 Am.St.Rep. 482; Bindbeutal v. Railway, 43 Mo.App. 463, 470; Birmingham Mineral R. Co. v. Jacobs, 92 Ala. 187, 9 South 320, 12 L.R.A. 830.

“In the instant case, the petition, while it dees not expressly allege an assault, can only be construed as charging an intentional shooting of plaintiff by defendant. And the pleadings as a whole exhibit the queer anomaly of contributory negligence being pleaded as a defense to an action for assault and battery. Such confusion can be avoided by requiring plaintiff in actions of this character to state the facts constituting the cause of action upon which he relies. Conway v. Reed, supra, [66 Mo. 346] should no longer be followed. While a number of our cases hold that, where negligence is clearly charged in the petition, the use of the word ‘willfully’ as a mere rhetorical flourish will not effect a change of the cause of action, Conway v. Reed is the only one that goes to the extent of holding that a charge of assault and battery is sustained by proof of an injury negligently inflicted.”

It is apparent that in ruling McLaughlin v. Marlatt our Supreme Court has followed and applied the rule that an act cannot be both careless and willful. The decision is clear authority for the proposition that proof of an injury negligently inflicted will not support a petition alleging that the injury for which relief is sought was willfully or intentionally inflicted. Under the same reasoning and in the interest of consistency it also must he held that proof of a willful act resulting in bodily harm, to-wit, the intentional shooting and wounding of another person, will not justify or support jury submission of the case on a hypothesis that the injury for which recovery is sought was the result of an act of negligence. This holding accords with the basic rule, supported by Missouri cases of almost countless number, that an instruction should never submit . an issue which is not supported by the evidence. 27 Mo.Dig., Trial,

If plaintiff had originally pleaded a cause of action founded on allegations to the effect that defendant Yeoham had caused him bodily harm by intentionally shooting and wounding him, or had amended his petition to conform with the evidence which established those facts, he would have been entitled to a submission of such an alleged cause of action in accordance with instructions formulated by the MAI committee and promulgated by the Supreme Court. As bearing on the choice of MAI instructions appropriate for such submission, we look to legal aspects of such acts as are involved in this case and the views held by the MAI Committee in respect thereto.

As earlier appears, it was said in McLaughlin v. Marlatt, supra, that “Where one person is injured by the discharge of a firearm in the hands of another, he may have an action for assault and battery, if the shooting was intentional.” This statement, although correct, oversimplifies the question at hand. Technically an assault is distinguishable from a battery. In Adler v. Ewing, Mo.App., 347 S.W.2d 396, the court makes the distinction by stating that “generally speaking an assault * * * is merely an unlawful attempt or offer to use force to the injury of another,” and that a battery is “the actual unlawful use or commission of such violence.” The same authority recognizes that every battery includes an assault, citing 6 C.J.S. Assault and Battery § 1(b), 796. “Battery” is defined in 6 Am.Jur.2d, Assault and Battery, Sec. 5, p. 10, as follows: “A battery is the unlawful touching or striking of the person of another by the aggressor himself or by any other substance put in motion by him, done with the intention of bringing about a harmful or offensive contact or apprehension thereof which is not legally consented to by the other and not otherwise privileged.” The foregoing is essentially the same concept of a battery as is expressed in the American Law Institute’s Restatement of the Law of Torts, Sec. 13. With respect to “Battery; Harmful Contact” the Restatement states as follows: “An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if (a) the act is done with the intention of bringing "about a harmful or offensive contact or an apprehension thereof to the other or a third person, and (b) the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and (c) the contact is not otherwise privileged.” The legal principles embodied in the foregoing Restatement expression have been embraced by the MAI Committee and incorporated in the instructions it has drafted for use in battery tort actions. See the Committee’s Comment in Notes on Use following MAI form No. 23.02 entitled, “Verdict Directing — Battery—Intent to Harm.” p. 117. Hence the Restatement definition of battery may be considered as having been incorporated into the body of Missouri tort law.

The MAI Committee has prescribed MAI form No. 23.02 for use in actions founded on a battery allegedly committed by unlawfully striking or touching the person of another with intent to effect a harmful or offensive contact. It is in all respects applicable to the submissible issues of liability in this case and consistent with Missouri law pertaining thereto. The form reads as follows:

“23.02 Verdict Directing — Battery—Intent to Harm
Your verdict must be for plaintiff if you believe:
First, defendant intentionally (here describe act such as ‘struck’) plaintiff, and
Second, defendant thereby caused plaintiff bodily harm.
(Second, defendant thereby caused a contract with plaintiff which was offensive to plaintiff, and
Third, such contact would be offensive to the sense of personal dignity of a reasonable person)
[unless you believe that plaintiff is not entitled to recover by reason of Instruction No.-(here insert number of affirmative defense instruction)].
Notes on Use

It is the basic theory underlying the use of MAI that when an approved instruction is applicable it must be given to the exclusion of any other instruction. Unless this tenet is observed, the MAI procedure cannot be successful. The rejection of MAI 23.02 as plaintiff’s verdict directing instruction and the giving of Instruction No. 2 in its stead constituted error. Civil Rule 70.01(b), V.A.M.R. Peak v. W. T. Grant Company, Mo.Sup., 409 S.W.2d 58; Hawkeye-Security Ins. Co. v. Thomas Grain Fum. Co., Mo.App., 407 S.W.2d 622; Barkley v. Mitchell, Mo.App., 411 S.W.2d 817; Sweatman v. McClure, Mo.App., 416 S.W.2d 665.

Furthermore, we are convinced that such error was prejudicial because Instruction No. 2 presented false issues extraneous to the case. The question of defendant’s negligence as submitted by the instruction was not responsive to the proof, hepce immaterial to the jury’s decision, and it should not have been laid before them. The impropriety was repeated by the giving of defendant’s instruction conversing the negligence hypothesized by Instruction No. 2. Likewise, Instruction No. 2 invited and gave rise to still another instruction submitting an issue entirely foreign to the case, to-wit: Instruction No. 5, which hypothesized contributory negligence on the part of plaintiff. ' “ * * * (T)he doctrine of contributory negligence has no application in an action for assault and battery.” 6 C.J.S. Assault and Battery § 11, p. 804. The interposition of these immaterial and false issues could not have failed to confuse and perplex the jury in their deliberation upon their verdict, to the prejudice of defendants. For this cause the judgment must be reversed and the case retried.

Defendant Carl Yeoham’s brief contains three points. Discussion of the questions raised thereby is not essential to our disposition of the appeal and our comment thereon is made only as a guide to the court and counsel upon retrial. Yeoham’s first point is a complaint that plaintiff and a juror were guilty of improper conduct during the trial. Even if the matters complained of in fact occurred, our present determination would not be affected by such considerations. It is not likely that the alleged incidents would occur when the case is tried again.

Points two and three made by defendant Yeoham are argued together and as a single assignment. He insists it was error for the trial court to admit evidence that plaintiff’s purpose in running up to the Yeoham car was to inquire of its occupants the location of a party, and contends that the trial court erred in refusing to give a tendered withdrawal instruction which would have told the jury that “in determining whether or not the defendant Yeoham had reasonable cause to apprehend that his wife or himself were in danger of bodily harm at the time of the occurrence in evidence” they would wholly disregard “all evidence as to why or for what purpose the plaintiff was at the scene.” Yeoham argues that the issue of whether he had reasonable cause to and did apprehend that he or his wife was in danger of bodily harm, as submitted in Instruction No. 6, should be determined by the jury on a consideration of the facts as they appeared to Yeoham himself at the time he fired the shot and that plaintiff’s explanation of “why or for what purpose he was at the scene” had nothing to do with the question. Plaintiff submits conversely that evidence he was en route to a party was relevant to explain his presence in the vicinity at the time of the shooting, and that “the intent in plaintiff’s mind as he approached the Yeoham vehicle was also competent evidence to be weighed by the jury.”

In Davenport v. Silvey, 265 Mo. 543, 178 S.W. 168, the Supreme Court delineated the right of self-defense as follows: “In actions for assault self-defense Nis a good defense to the action. Self-defense has a well-defined meaning in the law. In such case the party has a. right to act upon appearance. If he believes, and has good reason to believe, that he is in danger of suffering serious bodily injuries at the hands of the other party he has a right to act in self-defense, using such force only as is necessary to repel the threatened attack.” Earlier, in State v. Bidstrup, 237 Mo. 273, 140 S.W. 904, the Supreme Court said the following: “While self-defense is a law of necessity, yet, if a person has a reasonable cause to apprehend immediate danger of death or great personal injury, he has a right to use force as appears to him to be reasonably necessary to protect himself against such impending danger.” (Emphasis supplied.) In Duncan v. Moore, 219 Mo.App. 374, 271 S.W. 847, this court wrote as follows: “In 5 C.J. 635, it is said the law governing the right of self-defense is much the same in civil actions for assault and battery as in criminal cases; and that though it is not necessary that one be actually in danger in order to justify an assault on the ground of self-defense, but is justified in repelling an assault by the exercise of such reasonable force as may be, or as appears to him at the time to be, necessary to protect himself from bodily harm, yet his fears of injury must be reasonable or such as a reasonable person would entertain under the circumstances.” (Our italics.) Also see Spidell v. Tilghmon, Mo.App., 40 S.W.2d 719, where it is stated that the right of self-defense is not limited to an attack actually made by the other party, but that the law permits a party to act upon appearances. The foregoing Missouri authority is consistent with the rule stated in 6 Am.Jur. 2d Assault and Battery,’ Section 161, p. 135, quoted as follows: “In a civil action for assault, the defendant’s belief that the plaintiff intended to do him bodily harm cannot support a plea of self-defense unless it was such a belief as a reasonable person of average prudence would have entertained under similar circumstances. It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self-defense at the time involved reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken. In forming such reasonable belief a person may act upon appearances. In other words, it is sufficient that the danger was reasonably apparent.”

Under all the foregoing authority there can be no doubt that the question whether defendant Yeoham had reasonable cause to and did apprehend that he or his wife was in danger of bodily harm should have been resolved by the jury solely on the facts and circumstances as they appeared to the defendant Yeoham at the time he fired the shot. When the law speaks of “appearances”, it means appearances from the standpoint of the person who claims to have acted in self-defense. In the case of Bell v. State, 20 Tex.App. 450, the court reasoned as follows:

“But to whom must the appearance of danger, — the apprehension of the party killing, — reasonably appear? To the jury after hearing all the evidence, — after ascertaining the real facts, ‘a great many of which might not, could not, and doubtless were not known to defendant at the time of the killing?’ Or, must the real or apparent danger appear to defendant at the time of the homicide to be reasonable? We think the latter is correct. The jury must view the facts upon his standpoint. Each juror must place himself in the position of the defendant at the time of the homicide, and determine from all the facts, as they appeared to defendant at the time of the killing, whether his apprehension or fear of death or serious bodily harm was reasonable; and if so, they should acquit. For, says Mr. Wharton, whether the danger is apparent is to be determined from the defendant’s standpoint.”

This rule was followed in Ater v. Ellis, Tex.Civ.App., 227 S.W. 222, Patterson v. Kuntz, La.App., 28 So.2d 278 and Smith v. Delery, La.App., 98 So.2d 899, all of which were cases where the plaintiff sought damages for an allegedly tortious shooting and the issue arose whether or not plaintiff was under a reasonable apprehension of bodily harm. In each instance the court held it was immaterial for what purpose and with what intent the plaintiff was at the place where he was shot by the defendant.

In this case the jury should not have been permitted to consider “why or for what purpose plaintiff was at the scene” in resolving the issue of justification. The reasons and purposes that induced plaintiff to accost the Yeohams were abstractions lodged within the recesses of his own mind. Those factors were invisible to Yeoham, were not otherwise susceptible of sensory perception, were never communicated to him and never came within his notice or knowledge. Hence, they constituted no part of the “appearances” observable by him at the time in question. Regardless of whether such evidence might have been relevant. to other issues, the trial court’s refusal to withdraw it from the jury’s consideration on the issue raised by Instruction No. 6 erroneously permitted the jury to view the determinative facts and circumstances through the eyes of plaintiff instead of from Yeoham’s viewpoint. The error should not be repeated when the case is tried again. “The rule is recognized and established by many decisions of this court that where evidence is admissible for one purpose or one issue but would be improper for other purposes and upon other issues in the case, it should be received. The opponent then has a right to an instruction if he should request it limiting the extent to which and the purpose for which the jury may consider such evidence.” State ex rel. Kansas City Public Service Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58 1. c. 61. The quoted rule was followed in Ferril v. Kansas City Life Ins. Co., 345 Mo. 777, 137 S.W.2d 577; Service Construction Co. v. Nichols, Mo.App., 378 S.W.2d 283; O’Leary v. Illinois Terminal Ry. Co., Mo.App., 288 S.W.2d 393 and Scott v. Missouri Insurance Co., 361 Mo. 51, 233 S.W.2d 660.

We express an additional note of caution directed to the court and counsel participating in another trial. There is error in Instruction No. 6 which submitted the “self-defense” issue. Although the instruction was patterned after the appropriate MAI form, namely, MAI 28.07 entitled “Affirmative Defense — Battery Actions — Self Defense”, it has not been properly modified in accordance with substantive law on the subj ect. The instruction tells the jury (among other things) that their verdict must be for defendant if they believe “FIRST: Defendant Carl Yeoham had reasonable cause to apprehend and did apprehend bodily harm to-his wife and himself, either or both, and * * * ”. In that respect the instruction is a misdirection of law. Under Missouri decisions the existence of reasonable cause for apprehension of mere bodily injury is not sufficient to justify a shooting in self-defense. There must be reasonable cause of apprehension of imminent danger of death or great bodily harm. In Daggs v. St. Louis-San Francisco Ry. Co., 326 Mo. 555, 31 S.W.2d 769, an-action for assault and battery by shooting, the jury were instructed that if they found the defendant believed he was in imminent danger of “bodily harm” and shot plaintiff in self-defense, their verdict should be for defendant. On appeal the Supreme Court ruled, “By this instruction the court directed the jury on the issue of self-defense. The instruction did not require a finding that there was a reasonable cause for Pyeatt to believe that he was in imminent danger of death or great bodily harm. For this reason it is erroneous. State v. Bidstrup, 237 Mo. 273, loc. cit. 288, 140 S.W. 904; State v. Banks, 258 Mo. 479, loc. cit. 492, 167 S.W. 505; State v. Roberts, 294 Mo. 284, 242 S.W. 669, loc. cit. 674.” (Italics added.) Also see Restatement, Torts, Sec. 65.

We next direct attention to plaintiff’s appeal from the judgment entered in favor of defendant Markowitz by the trial court after setting aside the verdict and judgment in plaintiff’s favor. The reasons for that action are stated in the court’s order as follows: “The court finds as a matter of law that plaintiff's evidence fails to show that defendant, Carl J. Yeoham, was in any manner acting as an agent or servant of the defendant Markowitz or any partnership between him and David Markowitz.”

Plaintiff’s first point is that the trial court erred in setting aside the verdict and judgment in his favor and against defendant Markowitz “because defendant Carl J. Yeo-ham was acting in the ordinary course and scope of the business of the tavern partnership, when he negligently shot plaintiff.” We accept the point as a suggestion that there was sufficient evidence to support a finding by the jury that the shooting of plaintiff by Yeoham was a tortious act committed in the ordinary course of the partnership business of such a nature that liability therefor would be imputed to the partnership itself and to Markowitz, the other partner. Preliminarily, we examine the principles of law governing the question.

As a legal entity a partnership ordinarily acts through its individual members. Each partner acts as a principle for himself and as an agent for the firm and for his copartners in respect of partnership matters. 65 C.J.S. Partnership § 136, page 571. Arado v. Keitel, 353 Mo. 223, 182 S.W.2d 176. The law of partnership is regarded as a branch of the law of agency, from which derive the principles on which a partner acts for and binds his copartners in dealings with third persons. 40 Am.Jur. Partnership, Sec. 136, p. 224. Generally speaking, and on the principles of mutual agency, the partnership, and each member, is liable for torts committed by one of the members acting in the scope of the firm business, although they do not participate in, ratify, or have knowledge of such torts. “The test of the liability is based on a determination of the question whether the wrong was committed in behalf of and within the reasonable scope of the business of the partnership. If it was so committed the partners are liable as joint tort-feasors.” * * * “A necessary foundation for the liability of partners or the partnership for the tortious act of a copartner is that the act shall be performed in the line of the copartnership business, and if the injury results from a wanton or wilful act of one of the parties committed outside the agency or common business, then the person doing the act and causing the injury is alone responsible, unless the act which constituted the tort was authorized by the members of the partnership or subsequently ratified by them, the act itself having been done in their behalf and interest.” 40 Am.Jur. Partnership, Sec. 190, p. 262. With respect to whether the commission of a wilful tort, such as an assault and battery, by one partner will create liability against the partnership, or copartners, it is stated by 68 C.J.S. Partnership § 168, page 618, that “the true test is not the illegality or the malicious and willful character of the wrong, but whether it was done within the scope of the wrongdoing partner’s authority; and such determination must necessarily rest on the facts of the particular case.” The same authority further states, “Accordingly, where one partner commits a willful and malicious tort not within the scope of the agency or the common business of the partnership, to which the other members have not consented, and which has not been ratified, they are not liable for harm thereby caused.”

The general law applicable to partnership was supplemented in 1949 by the enactment of Chapter 358, V.A.M.S. (Mo.R.S. 1959) entitled “Uniform Partnership Law” which is essentially a codification of the substantive law of partnership. Section 358.130 reads as follows: “Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his co-partners, loss or injury is Caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.” We consider the quoted provisions to be expressive of the common law as it pertains to partnership liability arising from the wrongful acts of an individual partner.

The Missouri case of Mehlstaub v. Michael, 221 Mo.App. 807, 287 S.W. 1079, was decided by this court under principles of partnership law we have heretofore noted. In that case a father and a son owned a grocery store as partners. The son committed an assault and battery on the plaintiff in an effort to eject him from the store as an undesirable person. The father was present but did not interfere to prevent the “assault” until after plaintiff had been ejected and received the injuries of which he complained. Under those facts we ruled that the evidence was sufficient to go to the jury on the question as to whether the assault was committed in furtherance of the partnership business and for its benefit and we declined to disturb a verdict and judgment rendered against both defendant partners. In so ruling the opinion stated: “There is no question but that all partners are liable for a wrong committed by one of them while he is acting in the .ordinary course of the firm’s business. 30 Cyc. 523. The liability of the partnership for a wrong committed by one of its members is based upon the theory of agency. Locatelli v. Flesher, supra [Mo.App., 276 S.W. 415].”

Plaintiff concedes that no liability would accrue against the partnership if Yeoham fired the weapon for the sole purpose of defending himself or his wife from bodily harm reasonably apprehended and further concedes there was evidence to support such a finding. However, says plaintiff, certain admissions contained in the joint answer of defendants Yeoham and Markowitz constitute evidence from which the jury could reasonably believe that Yeoham fired the weapon either (1) to protect the partnership property or (2) to protect himself and his wife from apprehended bodily harm and to protect the partnership property. Plaintiff insists that either belief would support a jury finding that in firing the shot Yeoham was “acting in the ordinary course of the business of the Sunnyside Tavern partnership” as hypothesized in Instruction No. 2. As constituting such admissions, plaintiff points 'to the allegation in the joint answer to the effect that when the Yeohams arrived in front of their apartment Mary Yeoham opened the door of their automobile preparatory to alighting therefrom “having in her arms the cash and checks which constituted the days receipts of the Sunnyside Tavern * * * and some groceries”; the allegation that as Mrs. Yeoham started to move from her seat in the automobile plaintiff rushed up to open the car door, attempted to pull her from the automobile, thereby committed an assault and battery upon her and “put defendant Yeoham and his wife in great, sudden and imminent fear of suffering great bodily harm and of being robbed of the property in their custody”- and, the allegation that “The said Carl J. Yeoham, came to the defense of his wife and himself and fired one shot from a pistol in the direction of the plaintiff for the purpose of repelling the attack being made by the plaintiff and saving his wife and himself from bodily harm and from being robbed of their possessions.” (Italics supplied.)

It is futile for plaintiff to argue that the presence of the quoted language in the joint answer made a submissible issue on the question of whether a battery was committed in futherance of the partnership business. Assuming (only for the purpose of argument) that those averments might have had evidentiary bearing on the question, and might have been put before the jury if proper tender had been made for their reception in evidence, the clear fact remains that plaintiff did not offer the so-called admissions in evidence during the trial, and they are not any part of the evidence that was heard by the triers of fact in this case- — the jury. In testing the legal propriety of the trial court’s action setting aside the judgment for plaintiff and entering judgment in favor of defendant Markowitz, we should not and do not consider potential evidence which was not offered at trial for the jury’s consideration. In this respect we follow the well established rule that “admissions in pleadings cannot be regarded as evidence unless the pleadings are introduced at the trial at the proper time and in the proper way.” Lammers v. Greulich, Mo.Sup., 262 S.W.2d 861, citing 31 C.J.S. Evidence § 372, Note 15, page 1156; 20 Am.Jur. 534, Sec. 631; 14 A.L.R. 22, Anno-Evidence-Admissions in Pleadings loc. cit. 89.

Nor does the record .disclose other facts and circumstances sufficient to form a substantial evidentiary basis for a jury finding that Yeoham fired the shot in furtherance of the partnership business and for its benefit — as opposed to his unequivocally expressed reason for his action — that he fired the weapon as a measure to save his wife and himself from serious bodily harm. In so holding we recognize the rule that probative facts necessary to sustain a recovery may be established by circumstantial evidence, which need not have the quality of absolute certainty. However, the circumstances relied upon must point to the desired conclusion with such degree of certainty as to make that conclusion the more reasonable and probable of the conclusions to be drawn, and must rise above the stature of guesswork, speculation or surmise; and such evidence should have a tendency to exclude every reasonable conclusion other than the one desired. 12 A Mo. Digest, Evidence, ^587, 595. The circumstances herein relied upon by plaintiff fall short of those requirements. Only by speculation and surmise could the jury have concluded that Yeoham fired his weapon at plaintiff to preserve the partnership property, and that he was not impelled to that action by the primary and overwhelmingly more powerful instinct to protect the well-being of his wife and himself, particularly in view of all the surrounding circumstances shown by the evidence, previously narrated, reasonably tending to cause him great apprehension that either or both of them might suffer great bodily harm.

Plaintiff’s second point also charges the trial court with error in setting aside the verdict and judgment in his favor against ■defendant Markowitz, but on a different ground, to-wit: that defendant Yeoham was acting “with the authority” of Markowitz when he fired the shot at plaintiff. Apparently the foregoing is intended to postulate that there was substantial evidence before the jury from which they could reasonably have found that Yeoham was acting “with the authority” of copartner Markowitz when he shot the plaintiff. By so contending plaintiff undertakes to invoke the legal principle, as it is declared in Section 358.130 V.A.M.S., previously quoted, that liability for a wrongful act committed by a partner will be extended to the partnership when it is done “with the authority of his co-partner (s).” In support of this proposition plaintiff again points to the previously quoted allegations contained in the joint answer and makes the claim that those averments constitute “admissions” that Yeoham was acting with the authority of Markowitz at the time in question and were evidence in the case from which the jury could so find. Our previous ruling that the allegations of the joint answer were not introduced as evidence in the case disposes of this phase of plaintiff’s argument.

Plaintiff’s argument that Yeoham “was acting with the authority of his co-partner David Markowitz” is not undertaken to convince us that the “authority” in question franchised Yeoham to commit the specific act involved — the shooting. Plaintiff undertakes only to demonstrate that there is evidence to show there was “authority given Yeoham by Markowitz to carry the receipts home with a deadly weapon.” There is no evidence in the record to establish even that state of affairs. The only direct evidence on that question is the testimony of Markowitz, given by way of deposition, and is directly to the contrary. Plaintiff has seen fit to quote the substance of the deposition in his brief, which we re-quote, as follows:

“Q. All right, state your name, please sir?
A. David Markowitz.”
“Q. You just turn the whole operation over to him?
A. I do.
Q. You didn’t know that he was carrying a pistol back and forth * * *
A. No I didn’t.
Q. * * * in his car?
A. No.
Q. Would it have made any difference to you if you had known?
A. Absolutely not.”

The foregoing is not susceptible of interpretation that Markowitz authorized the shooting by retroactively refusing to disapprove Yeoham’s practice of carrying a pistol in his automobile, nor in any sense does it amount to ratification of Yeoham’s act in firing the shot.

In reality we have accorded plaintiff gratuitous treatment of point two. The case was not submitted on.the theory plaintiff now advances. The jury had no authority to return a verdict against defendant Markowitz except that defined and delegated to them by the court’s instructions. The verdict directing instruction requested by and given on behalf of plaintiff authorized the jury to find against Markowitz solely on the basis of their belief “that the defendant Carl J. Yeoham was so acting in the ordinary course of the business of the Sun-nyside Tavern partnership.” The instruction contains no hypothesis of recovery against Markowitz on the basis of the jury’s belief that Yeoham was acting “with the authority” of his copartner Markowitz. If the jury had returned a verdict in plaintiff’s favor on that ground it would have usurped the function of the court. Certainly the trial court would not have erred by setting aside a judgment rendered pursuant to a verdict of that nature.

Although there is a paucity of reported cases involving the question of partnership liability for a tortious shooting of another person by one of the partners, we have found one case directly in point with the instant case. In Idom v. Weeks & Russel, 135 Miss. 65, 99 So. 761, 40 A.L.R. 668, a two member partnership was engaged in the retail drug business. Pursuant to information that recent local burglaries had been committed and that suspicious characters were in town, one of the partners, together with companions, and without the knowledge of the copartner, secreted himself in the store after hours in the nighttime for the claimed purpose of apprehending burgiars. While so concealed, an innocent person was mistaken for a burglar and was shot and killed by the partner. On appeal from a directed verdict and judgment for both defendant partners, the court held that a submissible case had been made against the partner who shot and killed plaintiff and reversed as to him. The judgment in favor of the absent copartner was affirmed on the ground that it was shown by the evidence that the partner doing the shooting was not in the store for the purpose of trying to protect the property of the firm, but was there for the dominant purpose of trying to apprehend and capture the burglars, and that, consequently, the alleged wrongful act was not within the scope of the partnership business.

Inasmuch as plaintiff has not satisfied his burden in this appeal to establish that error was committed by the trial court in the respects alleged, we conclude that the judgment entered by that court in favor of defendant Markowitz was a proper one and should not be disturbed.

In accordance with all the foregoing, we reverse that portion of the judgment which was rendered in favor of plaintiff and against defendant Yeoham, affirm that portion thereof which provides that plaintiff take nothing from defendant Marko-witz, and remand the cause for a new trial on plaintiff’s claim for relief as against defendant Yeoham.

All concur.

       Alternate paragraph ‘Second’ and paragraph ‘Third’ are to he used when there was an offensive contact but no bodily harm.”

       Add if affirmative defense is in issue.

      . This rule is followed by numerous Missouri decisions which include Raming v. Metropolitan Street Railway, 157 Mo. 477, 57 S.W. 268; Cramer v. Springfield Traction Co., 112 Mo.App. 350, 87 S.W. 24; Boyd v. St. Louis Transit Co., 108 Mo.App. 303, 83 S.W. 287; Jacobson v. St. Louis Transit Co., 106 Mo.App. 339, 80 S.W. 309.

      . Citing Duncan v. Moore, 219 Mo.App. 374, 271 S.W. 847.

      . Citing Duncan v. Moore, 219 Mo.App. 374, 271 S.W. 847.

      . Citing Davenport v. Silvey, 265 Mo. 543, 178 S.W. 168.

      . The conditions under which a person may defend a third person and the means that may be employed for that purpose are outlined in Restatement, Second, Torts, See. 76, as follows: “The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that (a) the circumstances are such as to give the third person a privilege of self-defense, and (b) his intervention is necessary for the protection of the third person.” The foregoing rule is quoted and approved in Hartley v. Oidtman, Mo.App., 410 S.W.2d 537, together with the text of the reporter’s notes to the effect that while originally the privilege to intervene on behalf of third persons was restricted to members of the actor’s family or household, such restriction has been abandoned, and that, as stated in Salmond, Torts, (11th Ed. 1953) 375: “It may safely be assumed that at the present day all such distinctions are obsolete, and that every man has the right of defending any man by reasonable force against unlawful force.”

      . Also see Anno Liability for Assault by Partnership, 40 A.L.R. 677; Anno Liability for Assault by partner or joint adventurer, 30 A.L.R.2d 859; Cooley on Torts, Section 88, page 289; Idom v. Weeks & Russel, 135 Miss. 65, 99 So. 761, 40 A.L.R. 668 and Vrabel v. Acri, 156 Ohio St. 467, 103 N.E.2d 564.

      . Citing Schloss v. Silverman (Mfd.) 192 A. 343, a leading case.