dissenting: Unhappily, I find myself in disagreement with the court’s opinion, the preparation of which has fallen to me. It is not that I disagree with the principle that where ambiguity inheres in a contract of insurance the policy is to be construed strictly against the insurer, who wrote it, and favorably toward the insured, who paid for it. The rule is fair and serves a legitimate purpose. However, I part company from my esteemed colleagues when they construe this policy to be ambiguous, for my earnest search for ambiguity has been fruitless.
Under Coverage G of the insuring agreements the company is obligated (1) to pay all damages for which the insured may become legally liable because of injury to person or property and (2) to defend any suit against the insured for injury to person or property which seeks damages payable under the policy even though the allegations of the suit be groundless, false or fraudulent. However, under the exclusionary clauses, which are also a part of the policy, the insurance afforded under Coverage G does not apply to bodily injury or property damage caused intentionally by or at the direction of the insured.
*84Construing these provisions together, I believe it clear- that the insurer’s duty to defend extends only to claims covered by the policy, and does not extend to claims based on intentional torts, since they are expressly excluded from policy coverage. (44 Am. Jur. 2d, Insurance § 1535, pp. 414, 415.) An insurer is not bound to defend an insured in actions brought outside the obligations assumed in its policy. (El Dorado Refining Co. v. United States Fidelity & G. Co., 157 Kan. 198, 139 P. 2d 369.)
I also believe the average policyholder having a contract of insurance containing provisions like those now before the court could not fail to understand, if he would only read his contract, that the company was not undertaking to pay damages resulting from intentional torts or to defend legal actions based on willful and intentional acts. Too often, I fear, courts are prone to label as ambiguous, contracts which could be understood if completely and carefully read.
Indeed, why should an insured expect his policy to indemnify him against damages flowing from his own intentional tortious act? In Walters v. American Ins. Co., 185 C. A. 2d 776, 8 Cal. Rptr. 665, the court stated the general rule to be that a policy indemnifying an insured against liability for his own willful wrongs is void as against public policy. The rationale of the rule is appraised in Malanga v. Manufacturers Cas. Ins. Co., 28 N. J. 220, 225, 146 A. 2d 105, this way:
“. . . The reason the insurance policy denies coverage of an assault and battery committed by or at the direction of an insured is that it would be contrary to public policy to indemnify a person for a loss incurred as a result of his own willful wrongdoing. 7 Appleman, Insurance Law and Practice, § 242b (1942). . . .”
Courts should not lose sight of this principle in construing insurance contracts.
In this jurisdiction the rule has always been that an insurance contract, if not ambiguous, is to be enforced according to its terms and courts are not empowered to make another contract for the parties, their function being to enforce contracts as made. (Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310; Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571; Clark v. Prudential Ins. Co., 204 Kan. 487, 464 P. 2d 253.) We have also declared that the language of an insurance policy is to be taken in its ordinary and popular sense, and a court should not search for ambiguities where the words used have a common and well under*85stood meaning. (Kendall Plumbing, Inc. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 370 P. 2d 396.)
This court has also adhered to the general rule (44 Am. Jur. 2d, Insurance, § 1539, pp. 419, 420) that the duty of an insurer under a liability policy to defend an action for damages against its insured is measured, not by proof adduced at the trial or the outcome of the trial itself, but by the allegations of the petition as compared with the provisions of the insurance contract. (El Dorado Refining Co. v. United States Fidelity & G. Co., supra; Leonard v. Maryland Casualty Co., 158 Kan. 263, 146 P. 2d 378.)
The legal principle was recently reaffirmed in Brown v. Green, 204 Kan. 802, 466 P. 2d 299, where it was said:
“. . . [T]lie rule is that the question whether a liability insurance carrier owes a duty to defend is to be determined by the allegations of a plaintiff’s petition and the terms of the policy. . . .” (p. 807.)
The plaintiff suggests the rule should be modified to accord with the views expressed by the United States Court of Appeals, Tenth Circuit, in Milliken v. Fidelity and Casualty Company of New York, 338 F. 2d 35 (1964), an action which arose from Kansas. While recognizing our rule to be as defined in the foregoing cases, the federal court declined to follow it implicitly because of differences that existed between federal and Kansas rules of procedure. The court explained its qualification of the rule in this wise:
“. . . But, the allegations of the complaint are not conclusive on the issue. The duty to defend may attach at some later stage of the litigation if the issues of the case are so changed or enlarged as to come within the policy coverage. The reason for this rule is that ‘. . . [u]nder the Federal Rules of Civil Procedure the dimensions of a lawsuit are not determined by the pleadings because the pleadings are not a rigid and unchangeable blueprint of the rights of the parties. . . .’ Thus, the insurer’s duty to defend an action brought in federal court against its insured may arise or attach at any stage in the litigation. And the duty does attach where there are facts, extraneous to the allegations of the pleadings, which, if proved, make out a case against the insurer that is covered by the policy and which either are actually brought to the insurer’s attention or could have been discovered by it through a reasonable investigation.” (p. 40.)
Perhaps, as urged by plaintiff, the rule which this court has previously followed should be qualified in line with the Milliken case, although this is neither the time nor the place to discuss that proposal. Even under the Milliken rule however, my view of what should be done with this appeal would not be affected.
Cawby’s petition alleged an unprovoked assault and battery *86against Gowing. It was charged to have been willful, malicious, vicious and violent, persisting after Cawby left his land to get medical attention. No amended petition was filed expanding the issue. Neither was the issue enlarged at pretrial conference. So far as the record is concerned the case went to trial on the single issue of a willful, malicious, vicious and unprovoked assault and battery as to which Cawby sought punitive as well as compensatory damages.
Hence, neither under our own rule, as last expressed in Brown v. Green, supra, nor under the Milliken rule, would Great Plains be obligated to defend against Cawby’s lawsuit. Neither would Great Plains have any reason to expect the basis of recovery to be enlarged, for Gowing had already been convicted in a criminal case.
The court’s opinion points out, citing Gray v. Zurich Insurance Co., 65 C. 2d 263, 54 Cal. Rptr. 104, 419 P. 2d 168, that the exclusionary clause might be said to lack clarity in that an unintentional harm may flow from an intentional act. This may be true, but the suggestion is irrelevant so far as this case is concerned, for Gowing’s acts were directed solely against the party injured, and were alleged to have been willful, malicious, violent and vicious throughout.
For the reasons stated I would affirm the judgment of the trial court.
Price, C. J., and Kaul, J., join in the foregoing dissenting opinion.