Robert C. Kitchen and Richard A. Smith, Philadelphia, for appellant.
Foster A. Dunlap and Philip S. Polis, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 487]
This is an action of assumpsit brought by John Wilson on a policy of public liability insurance. The record
[ 173 Pa. Super. Page 488]
consists of plaintiff's complaint and defendant's preliminary objections thereto in the nature of a demurrer.
The material averments found in the complaint may be summarized as follows: Plaintiff, the insured, was the owner of a restaurant, bar and rooming house in Philadelphia. On or about June 27, 1950 the defendant insurance company issued to plaintiff a policy of insurance whereby the defendant agreed to 'pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, sickness or disease including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined'; and, further, to 'defend in his name and behalf any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * * *.' On or about January 28, 1951, the complaint continues, while the policy was in effect, 'an altercation took place among the patrons of Plaintiff's restaurant and bar with the result that certain accidental injuries were alleged to have been sustained by John A. Lees'. Lees subsequently brought an action of trespass against the insured and in his complaint Lees 'falsely averred that Plaintiff herein committed an assault and battery upon said John Lees'. A copy of the Lees complaint was forwarded by the insured to the defendant, but it refused to defend the action 'with the result that Plaintiff was obliged to settle the suit against him' by payment to Lees in the sum of $750. The present action was brought to recover the sum of $750 with interest from the date of settlement.
[ 173 Pa. Super. Page 489]
Defendant's preliminary objections in the nature of a demurrer aver that the instant complaint does not state a cause of action because the Lees complaint alleged an assault and battery committed by Wilson and the policy of insurance states that assault and battery is not an 'accident' if committed 'by or at the direction of the insured'. The matter came on for argument in the Court of Common Pleas No. 7 of Philadelphia County. The preliminary objections were dismissed and defendant was directed to file an answer, it declined to do so, and after judgment was entered against it this appeal was taken.
On the record before us we must accept as fact plaintiff's averments that Lees sustained 'accidental' injuries on plaintiff's premises, and that thereafter the said Lees filed a complaint in trespass wherein he 'falsely averred that Plaintiff herein committed an assault and battery upon said John Lees'. Defendant's present position is, therefore, of necessity, that irrespective of the actual fact that the injury to Lees was the result of a hazard within the coverage of the policy defendant is relieved of its duty to defend and indemnify simply because of a false averment in the Lees complaint. We think that defendant's position is untenable.
Plaintiff and the court below cite University Club v. American Mutual Liability Insurance Co., 124 Pa. Super. 480, 189 A. 534. In that case it appeared that the defendant had issued a policy of insurance to plaintiff whereby it agreed to 'Indemnify this Employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed * * *'; and to defend 'suits or other ...