Wickens, P.J.
— Damages were awarded for personal injuries to plaintiff-appellee after a jury trial.
The alleged tort-feasor passed away prior to the trial and appellant is the personal representative of the estate of the original defendant below.
An amended complaint and an answer in two paragraphs constituted the trial issue. It was alleged in the amended complaint that plaintiff-appellee’s personal injuries were the sole proximate result of the decedent’s conduct during an armed robbery.
The motion for new trial asserts that the verdict of the jury was not sustained by sufficient evidence and that it is contrary to law; that the trial court erred in overruling defendant’s motion, made at the close of plaintiff’s evidence, to instruct the jury to return a verdict for the defendant; and the trial court erred in overruling defendant’s motion, made at the close of all the evidence, to instruct the jury to return a verdict for the defendant.
We take the evidence directly from appellee’s condensed recital thereof so that it may be clear that we are considering only that evidence most favorable to appellee. It also bears out that there was no dispute or conflict therein as we understand those terms. Decedent, Jennings B. Fudge, was the owner of Fudge’s Tavern and he was operating it about midnight of the time in question.
“On June 29, 1956, Merchie Pratt, his wife and friends were patrons of Fudgie’s Tavern at 309 North Butler Avenue, Marion, Indiana, and were seated at a table just inside the entrance to the tavern near the door. Several other patrons were also seated in the tavern. A man entered the tavern armed with a loaded, cocked revolver and announced he was holding up the tavern and told everyone not to move. [697]*697The robber then walked to the east end of the bar and handed the tavern owner, Jennings B. Fudge, a sack and directed him to put the money in it. Fudge walked some 12 feet back to the cash register, opened it and placed the money therein into the sack; the robber further directed Fudge to go to a cigar box and empty the money from it into the sack; Fudge then went to the cigar box and placed the money from the box into the sack: Fudge was not in any hurry while doing this. Fudge then walked back to the east end of the bar, near the opening from behind the bar, and handed the sack of money towards the robber. The robber was standing at the end of the bar with his revolver pointed at Fudge at this time. As the robber reached for the sack, Fudge grabbed the robber’s gun or gun hand and they scuffled and fell to the floor during which scuffle several shots were fired from the gun and at least one other person hit by one of the bullets. Fudge and the robber grappled and rolled on the floor over to Pratt’s table. At this time the gun was still firing and F’udge did not have control of the robber or his gun. Tables were being upset, patrons screaming. When Fudge and the robber rolled against Pratt’s table, Pratt, to protect himself and his wife, jumped down on the robber’s gun hand and thereafter was also shot. The fight continued briefly until another patron hit the robber on the head with a bottle, knocking him unconscious.”
Appellant contends that the decision is contrary to law and not sustained by sufficient evidence because plaintiff did not establish that Fudge owed a duty of care to Pratt under the facts, and did not show that Fudge breached said duty. This was also consistent with the issues. As a part of defendant-appellant’s special answer it was alleged that decedent “did not wilfully and intentionally do any act with the intent of causing harm to any of the patrons of his tavern, but did act intentionally to protect and preserve his person and property and acted in self defense by so doing.”
The parties in their briefs appear to agree that the abstract legal principles which would usually apply to actionable tort where a tavern patron was injured on the tavern premises can be stated that Pratt was a business visitor in the Fudge’s tavern on the night in question and:
[698]*698“Fudge was bound to protect Pratt while in the tavern against injury at the hands of third persons whether they were guests or strangers where it was in his power to do so. . . . Yet as the proprietor of a place of business, Fudge was not the insurer of Pratt against personal injuries afflicted by other persons on the premises. . . . Fudge was liable only for his negligence, and he was not liable for the wrongful or negligent acts of third persons not under his control which he could not reasonably have anticipated and guarded against.”
Basically the issues were fairly tried on the factual premises and the legal maxims which we have mentioned. There appears no error in the record unless as urged by appellant, this is a case in which the usual legal principles do not pertain. In such event the decision could be contrary to law because it is then contrary to the principles of law governing the particular set of facts evolving in this matter.
In the law of torts there are recognized terms of “privilege,” “justification,” and “excuse.” These denote circumstances under which what might have been actionable wrong is excused or justified or the wrongdoer is held privileged, hence no liability occurs. Prosser, Torts, §§ 16, 19, 24, pp. 99, 110, 127 and 128 (3rd Ed. 1964) ; Bohlen, Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality, 39 Harv. L. Rev. 307 (1926) ; Beale, Justification for Injury, 41 Harv. L. Rev. 553 (1928).
“An act causing damage to another does not create liability where the person doing the act has a legal excuse or justification therefor.” 52 Am. Jur., Torts, § 85, pp. 432, 433.
Such privilege, excuse or justification can be found in the authorities under self-defense and under the heading of necessity but the underlying principle most frequently fathering the immunity is that where the defendant furthers an interest of community social importance he is entitled to protection.
As said by Prosser, supra, on p. 128:
[699]*699“The ‘champion of the public’ is not required to pay out of his own pocket for the general salvation.”
In describing what he calls an “incomplete privilege” Boh-len, supra, says at p. 319 that the privilege becomes complete “. . . where the actor destroyed personal property for the protection of the public interest, or for the protection of others than himself as well as of himself, and when therefore it may well appear unfair to make him bear the entire burden of the loss which he causes.”
Exhibiting the public interest feature of excuse, privilege or justification, in his treatise on “Justification” Beale, supra, says at p. 557:
“For instance, a private person may, if a felony has been actually committed, arrest a person on reasonable suspicion for the commission of the felony, and in case of the felon’s escaping may prevent his escape even by killing if the felony was one of violence; and he may also interfere with such violence as is necessary to prevent the commission of the felony.”
The American Law Institute in Restatement has treated with this subject under “Justification or Excuse.” It is recognized there that in “cases where the interests of the public are overwhelming, the purpose of the actor is immaterial.” Restatement, Torts, § 890 p. 479.
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Wickens, P.J.
— Damages were awarded for personal injuries to plaintiff-appellee after a jury trial.
The alleged tort-feasor passed away prior to the trial and appellant is the personal representative of the estate of the original defendant below.
An amended complaint and an answer in two paragraphs constituted the trial issue. It was alleged in the amended complaint that plaintiff-appellee’s personal injuries were the sole proximate result of the decedent’s conduct during an armed robbery.
The motion for new trial asserts that the verdict of the jury was not sustained by sufficient evidence and that it is contrary to law; that the trial court erred in overruling defendant’s motion, made at the close of plaintiff’s evidence, to instruct the jury to return a verdict for the defendant; and the trial court erred in overruling defendant’s motion, made at the close of all the evidence, to instruct the jury to return a verdict for the defendant.
We take the evidence directly from appellee’s condensed recital thereof so that it may be clear that we are considering only that evidence most favorable to appellee. It also bears out that there was no dispute or conflict therein as we understand those terms. Decedent, Jennings B. Fudge, was the owner of Fudge’s Tavern and he was operating it about midnight of the time in question.
“On June 29, 1956, Merchie Pratt, his wife and friends were patrons of Fudgie’s Tavern at 309 North Butler Avenue, Marion, Indiana, and were seated at a table just inside the entrance to the tavern near the door. Several other patrons were also seated in the tavern. A man entered the tavern armed with a loaded, cocked revolver and announced he was holding up the tavern and told everyone not to move. [697]*697The robber then walked to the east end of the bar and handed the tavern owner, Jennings B. Fudge, a sack and directed him to put the money in it. Fudge walked some 12 feet back to the cash register, opened it and placed the money therein into the sack; the robber further directed Fudge to go to a cigar box and empty the money from it into the sack; Fudge then went to the cigar box and placed the money from the box into the sack: Fudge was not in any hurry while doing this. Fudge then walked back to the east end of the bar, near the opening from behind the bar, and handed the sack of money towards the robber. The robber was standing at the end of the bar with his revolver pointed at Fudge at this time. As the robber reached for the sack, Fudge grabbed the robber’s gun or gun hand and they scuffled and fell to the floor during which scuffle several shots were fired from the gun and at least one other person hit by one of the bullets. Fudge and the robber grappled and rolled on the floor over to Pratt’s table. At this time the gun was still firing and F’udge did not have control of the robber or his gun. Tables were being upset, patrons screaming. When Fudge and the robber rolled against Pratt’s table, Pratt, to protect himself and his wife, jumped down on the robber’s gun hand and thereafter was also shot. The fight continued briefly until another patron hit the robber on the head with a bottle, knocking him unconscious.”
Appellant contends that the decision is contrary to law and not sustained by sufficient evidence because plaintiff did not establish that Fudge owed a duty of care to Pratt under the facts, and did not show that Fudge breached said duty. This was also consistent with the issues. As a part of defendant-appellant’s special answer it was alleged that decedent “did not wilfully and intentionally do any act with the intent of causing harm to any of the patrons of his tavern, but did act intentionally to protect and preserve his person and property and acted in self defense by so doing.”
The parties in their briefs appear to agree that the abstract legal principles which would usually apply to actionable tort where a tavern patron was injured on the tavern premises can be stated that Pratt was a business visitor in the Fudge’s tavern on the night in question and:
[698]*698“Fudge was bound to protect Pratt while in the tavern against injury at the hands of third persons whether they were guests or strangers where it was in his power to do so. . . . Yet as the proprietor of a place of business, Fudge was not the insurer of Pratt against personal injuries afflicted by other persons on the premises. . . . Fudge was liable only for his negligence, and he was not liable for the wrongful or negligent acts of third persons not under his control which he could not reasonably have anticipated and guarded against.”
Basically the issues were fairly tried on the factual premises and the legal maxims which we have mentioned. There appears no error in the record unless as urged by appellant, this is a case in which the usual legal principles do not pertain. In such event the decision could be contrary to law because it is then contrary to the principles of law governing the particular set of facts evolving in this matter.
In the law of torts there are recognized terms of “privilege,” “justification,” and “excuse.” These denote circumstances under which what might have been actionable wrong is excused or justified or the wrongdoer is held privileged, hence no liability occurs. Prosser, Torts, §§ 16, 19, 24, pp. 99, 110, 127 and 128 (3rd Ed. 1964) ; Bohlen, Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality, 39 Harv. L. Rev. 307 (1926) ; Beale, Justification for Injury, 41 Harv. L. Rev. 553 (1928).
“An act causing damage to another does not create liability where the person doing the act has a legal excuse or justification therefor.” 52 Am. Jur., Torts, § 85, pp. 432, 433.
Such privilege, excuse or justification can be found in the authorities under self-defense and under the heading of necessity but the underlying principle most frequently fathering the immunity is that where the defendant furthers an interest of community social importance he is entitled to protection.
As said by Prosser, supra, on p. 128:
[699]*699“The ‘champion of the public’ is not required to pay out of his own pocket for the general salvation.”
In describing what he calls an “incomplete privilege” Boh-len, supra, says at p. 319 that the privilege becomes complete “. . . where the actor destroyed personal property for the protection of the public interest, or for the protection of others than himself as well as of himself, and when therefore it may well appear unfair to make him bear the entire burden of the loss which he causes.”
Exhibiting the public interest feature of excuse, privilege or justification, in his treatise on “Justification” Beale, supra, says at p. 557:
“For instance, a private person may, if a felony has been actually committed, arrest a person on reasonable suspicion for the commission of the felony, and in case of the felon’s escaping may prevent his escape even by killing if the felony was one of violence; and he may also interfere with such violence as is necessary to prevent the commission of the felony.”
The American Law Institute in Restatement has treated with this subject under “Justification or Excuse.” It is recognized there that in “cases where the interests of the public are overwhelming, the purpose of the actor is immaterial.” Restatement, Torts, § 890 p. 479.
In its search for a legal analysis of justification as affected by public interest the American Law Institute also says:
“(2) The use of force or the imposition of a confinement intended or likely to cause death or serious bodily harm is privileged if the actor reasonably believes that the commission or consummation of the felony cannot otherwise be prevented. . . .” Restatement, Second, Torts, § 143, P. 257.
The Institute further expressly includes the crime of robbery among those which excuse the use of means intended or likely to cause death. Restatement, Second, Torts, § 143, Comment b, p. 258.
[700]*700There is, and must continue to be, a great public interest in the prevention of crime and in the speedy apprehension of criminals. To that end the victim of a crime, as vicious as armed robbery, during the course of such criminal act, is excused, justified and to be held privileged from ordinary resistance which might otherwise cause actionable damage. He should be chargeable with no greater legal duty to use care for the protection of others than he, in the emergency, has seen fit to use to protect himself.
We are not required in this case to determine whether an actor under the same circumstances would be excused if he had used a shot gun or machine gun, greatly increasing the danger to his business guests. The amount of force applied by Fudge leaves a grave question of foreseeability. That same minimal force considered with the emergency nature of his problem might, of itself, excuse his action as neither foreseeable nor constituting the natural consequences of his act. As in self-defense (to which justification here is related) the force employed must not be out of proportion to the apparent urgency of the occasion.
A noted author has said of self-defense:
“To repel force by force is the common instinct of every creature that has means of defense. And when the original force is unlawful, this natural right or power of man is allowed, nay approved by the law. Sudden and strong re-sistence to unrighteous attack is not merely to be tolerated; in many cases it is a moral duty. . . . The law sets bounds to it by the rule that the force employed must not be out of proportion to the apparent urgency of the occasion.” Pollock, The Law of Torts, pp. 172, 173 (12th Ed. 1923).
Since the time of Blackstone, a private person has been exhorted by law to help prevent crime. Then it was said that a private citizen was “bound by the law to arrest the felon, on pain of fine and imprisonment, if he escapes through the negligence of the standersby.” Blackstone, Commentaries on the Laws of England, p. 999 (3rd Ed. Chase 1877).
[701]*701“It is the right and duty of a private person to apprehend one who has committed a felony in his presence, either at the time of its commission or upon immediate pursuit.” 5 Am. Jur. 2d, Arrest, § 35, p. 727.
Our Supreme Court has even approved an instruction that a private citizen had the right, and it was his duty, to use force to prevent robbery, or even to prevent the escape of any robbers. Burns v. State (1922), 192 Ind. 427, 438, 136 N. E. 857.
In our considered opinion the actions of decedent in the manner and under the circumstances herein related in repelling a robber aré justified, excused, and privileged.
We therefore find that the decision of the trial court is contrary to the principles of law applicable to the particular case and must be and is therefore reversed. The error being one of law in failing to sustain the motion for directed verdict at the close of all evidence, the trial court is now directed to enter judgment for the defendant.
Smith, C.J., Bierly, Hunter and Prime, JJ., concur.
Faulconer, J., dissents with opinion in which Carson and Mote, JJ., concur.