Pendergraft v. Commercial Standard Fire & Marine Co., 7852.

• Decision Date: 05 March 1965
• Docket Number: No. 7852.,7852.
• Citation: 342 F.2d 427
• Parties: Chester Ellis PENDERGRAFT, a minor, Appellant, v. COMMERCIAL STANDARD FIRE & MARINE CO., a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

342 F.2d 427 (1965)

Chester Ellis PENDERGRAFT, a minor, Appellant, v. COMMERCIAL STANDARD FIRE & MARINE CO., a corporation, Appellee.

No. 7852.

United States Court of Appeals Tenth Circuit.

March 5, 1965.

Floyd L. Walker, Tulsa, Okl. (John Hudson, Tulsa, Okl., on the brief), for appellant.

Thomas R. Brett, Tulsa, Okl. (Robert D. Hudson, Tulsa, Okl., on the brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

Commercial Standard Fire & Marine Company, appellee, brought this action in the court below against appellant, Pendergraft, for a declaratory judgment to determine its liability upon a comprehensive liability insurance policy. The trial court determined, under the facts in the case, that liability did not exist and Pendergraft has appealed.

The case was submitted below upon stipulated facts plus the deposition of the insured, Garringer. Those facts may be summarized as follows: On August 17, 1962, appellee issued a "Home Owners" policy of liability insurance to the parents of one Garringer, who was a minor child at that time and also an insured under the terms of the policy. The policy of insurance contained the following pertinent provision, whereby the company became obligated to "* * * pay on behalf of the Insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * *." The policy also contained an exclusion providing that the above liability clause did not apply "* * * to bodily injury or property damage caused intentionally by or at the direction of the insured."

The parties further stipulated that Garringer committed an assault and battery upon Pendergraft in the following manner: He came up from behind Pendergraft, spun him around and struck him on the cheek just below the eye. As a result, Pendergraft was knocked down into the street, fell upon the pavement and struck the back of his head against the paved portion of the street with sufficient force to fracture his skull and render him unconscious. The deposition of Garringer was, by stipulation, made a part of the record below, and his uncontradicted testimony is that he intentionally committed an assault and battery upon Pendergraft; but that he did not intend to inflict any permanent bodily injury to Pendergraft. Nor did he intend to inflict upon Pendergraft the specific injuries sustained.

The findings of fact made by the trial court followed generally the stipulation of facts and in addition contained the following:

"The court further finds that the act of the defendant Garringer in striking the defendant Pendergraft was intentional, wilful and criminal and was committed by the said Garringer with the intent upon his part to inflict personal injury upon the defendant Pendergraft."

Succinctly stated, appellant's whole argument for reversal is premised upon the fact that he did not intend to inflict upon Pendergraft the specific injuries sustained. It is argued that this fact makes the above-quoted...