Fisher v. Travelers Indem. Co.

• Decision Date: 14 February 1966
• Docket Number: No. 5-3752,5-3752
• Citation: 398 S.W.2d 892,240 Ark. 273
• Parties: Lewis M. FISHER, Appellant, v. The TRAVELERS INDEMNITY CO., Appellee.
• Court: Arkansas Supreme Court

Page 892

398 S.W.2d 892

240 Ark. 273

Lewis M. FISHER, Appellant, v. The TRAVELERS INDEMNITY CO., Appellee.

No. 5-3752.

Supreme Court of Arkansas.

Feb. 14, 1966.

Griffin Smith, Little Rock, for appellant.

Wright, Lindsey & Jennings, Little Rock, for appellee.

HOLT, Justice.

The issue presented in this case is whether appellee breached a duty to defend its insured, the appellant, in a tort action. Appellant was sued by Kenneth Skelton who alleged that the appellant, his employer, had used more force than was necessary in ejecting him from appellant's place of business when he went there to discuss employment conditions. The appellant called upon the appellee insurance company to defend him according to the terms of its policy. The appellee declined to defend the action upon the basis that Skelton's complaint was predicated upon an alleged assault and battery by the insured and, therefore, was not within the coverage of the policy. The appellant then provided his own defense. Skelton's action resulted in a verdict and judgment against appellant for $500.00 compensatory damages and $2,500.00 punitive damages. Thereupon appellant instituted the present action seeking reimbursement for the total amount of this judgment and the expense of defending the action. The cause was submitted upon stipulation with exhibits. The trial court dismissed appellant's complaint and it is from that judgment this appeal arises.

For reversal appellant contends: 'The original complaint in Skelton v. Fisher alleges negligence as a basis for recovery. * * * The fact that it alleged an additional ground, assault, did not relieve the insurer of the duty to defend, as both grounds were ultimately submitted to the jury.'

It is well settled that the allegations in a complaint, whether groundless or false, determine the obligation of the insurer to defend its insured within the coverage of the policy. Equity Mutual Insurance Co. v. Southern Ice Co., 232 Ark. 41, 334 S.W.2d 688. See, also, 29A Am.Jur., Insurance, § 1452 and 7 Am.Jur.2d, Automobile Insurance, § 162. Skelton's complaint in pertinent part reads: '* * * the plaintiff was assaulted and badly beaten by the above named defendant Lewis Fisher [appellant] entirely without cause of provocation. * * * the defendant Lewis Fisher at the above named date and place willfully, wrongfully and unlawfully attacked this plaintiff and so badly beat him about the head, face, neck, shoulders and body that the plaintiff was forced to be hospitalized and forced to expend large sums for medical and hospital attention because of the severity of the injuries which he suffered as the result of this beating'; that appellant 'did willfully, unlawfully, and negligently injure the plaintiff * * * that as a result of these unlawful, illegal, and wrongful acts' plaintiff suffered damages to the extent of $25,000.00; further, 'that the acts of the defendant [appellant] above described were wanton, willful, deliberate and malicious' and entitled plaintiff to punitive damages in the amount of $25,000.00.

It is appellee's contention that these allegations do not present a claim for injuries within the meaning of the policy. The policy provided coverage for injuries 'caused by accident' and, further, provided that an 'assault and battery shall be deemed an accident unless committed by or at the direction of the insured.' We must agree with appellee's contention. There is no coverage under the terms of this policy for the alleged...