Franklin General Ins. Co. v. Hamilton, 18730

• Decision Date: 03 April 1956
• Docket Number: No. 18730,18730
• Parties: FRANKLIN GENERAL INSURANCE COMPANY, Appellant, v. William T. HAMILTON, William O. Garrett, Appellees.
• Court: Indiana Appellate Court

Page 93

133 N.E.2d 93

126 Ind.App. 537

FRANKLIN GENERAL INSURANCE COMPANY, Appellant, v. William T. HAMILTON, William O. Garrett, Appellees.

No. 18730.

Appellate Court of Indiana, In Banc.

April 3, 1956.

Murray, Mannon, Fairchild & Stewart, James J. Stewart, Samuel A. Fuller, Indianapolis, for appellant.

Dulberger, Talesnick, Claycombe & Bagal, Robert Claycombe, Indianapolis, for appellee Hamilton.

Aribert L. Young, Armstrong, Gause, Hudson & Kightlinger, Indianapolis, for appellee Garrett.

ROYSE, Chief Judge.

Appellant brought this action against appellees for a declaratory judgment on an automobile insurance policy issued by it to appellee Garrett. Appellee Hamilton was injured by appellee Garrett in an automobile collision. He brought an action for damages against appellee Garrett charging negligence, which resulted in a judgment in his favor for $8,000 against Garrett. During the pendency of that action appellant brought this action on the grounds that appellee Hamilton's injury was the result of an assault and battery and under the provisions of its policy it was not liable.

Trial to the court resulted in a finding that appellee Hamilton was not injured as the result of an assault and battery by appellee Garrett; that appellant was obligated to defend the action of Hamilton vs. Garrett and was liable for $5,000.00 and such additional amounts as may be determined in an appropriate proceeding. Judgment accordingly.

The error assigned here is the overruling of appellant's motion for a new trial. This being an appeal from a negative judgment the only specification which presents a question that has not been waived by a failure to discuss in appellant's brief is that the decision is contrary to law.

The pertinent provisions of appellant's insurance policy are as follows:

'I. Coverage A--Bodily Injury Liability

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident arising out of the ownership, maintenance or use of the automobile. * * *

'Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.'

There is a sharp conflict in the evidence, but under the firmly established rule we proceed to a consideration of only that evidence favorable to appellees. The pertinent portion of the testimony of appellee Garrett, as set out in appellant's brief, is as follows:

'Mr. North bumped me three times from the rear, the third bump was sort of a light tap. There is a slight incline where this occurred. After he bumped me the third time, I thought that if he bumped me again he would run me into the cars in front of me. I looked in the rear view mirror and was going to back up. I didn't see any pedestrians and then when I started back, I saw two figures darting between me and Everett North, and I immediately tried to stop. I did everything in my power to stop. I had never seen Hamilton before this accident. I did not know he was in the vicinity of my car just prior to the accident. I went to see Pruyn and Coons with the understanding that they were the attorneys for Franklin General Insurance Company. I talked to Mr. Pontius, but I thought he was Mr. Coons at that time. He wrote a statement on tablet in pencil which I signed. I have had 7 1/2 years grade school. When I was talking to Mr. Pontius, I didn't use the phrase used in my statement 'intention when I started backing to strike the grill of the car belonging to Mr. North.' Those were Mr. Pontius' words. I didn't think there was any damage done to my car. I read the statement prepared by Mr. Pontius. I couldn't understand it. I signed it because I thought he was representing me as an attorney for Franklin General Insurance Company. I was in the office maybe an hour and a half. I did not intend to injure North or anyone else when I backed up my automobile. I did not intend to damage anyone's property when I backed up my automobile. I backed up to tap him playfully. I looked into the rear view mirror before I started. Neither Mr. Pontius, nor Mr. Pruyn, nor Mr. Coons told me anything about the clause before I signed the statement. I wasn't angry when the accident happened. I didn't know Hamilton or North before the accident.'

He said neither his car nor the North car was damaged. North, the...