(dissenting)-
I dissent to the majority opinion for the reason that I think it misinterprets the provisions of the insurance policy involved herein. In the policy under Insuring Agreements, this language is found:
“1. 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 timg resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined.
“Coverage B — Property Damage Liability
“To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of the use thereof, caused by accident and arising out of the hazards hereinafter defined.” (emphasis supplied)
We all know that assault and battery is not an accident. It is a wilful and unlawful attempt to use and the using of force or violence to do bodily harm to another. 21 O.S.1961 §§ 641, 642. Therefore unless a further provision of the insurance policy enlarges the meaning of accident, the injury in the instant case clearly would not be within the coverage of the policy.
The further provision of the policy to which I have reference is:
“Conditions
* * $ * * *
“3. Definitions
******
“(d) Assault and Battery. Under coverages A and B, assault and battery shall be deemed an accident unless committed by or at the direction of the Insured.” (emphasis supplied)
This provision allows assault and battery to be included in the coverage for injuries caused by accident, unless the assault and battery was committed by the insured.
In this case Griffith committed the assault and battery. Was he the insured? He was a partner in the partnership doing business under the name of Western Hills Riding Stables, the named insured under the policy. The policy provides under “Definition of Insured” the following:
“ * * * If the named insured is a partnership, the unqualified word Insuredalso includes any partner therein, but only with respect to his liability as such.” (emphasis supplied)
Griffith was a partner with respect to his liability as such. If this were not true, neither the partnership entity nor Stone would be liable for Griffith’s wrongful acts. Since all agree that Stone is liable for Griffith’s acts because Griffith is a partner and has liability as such, it follows that Griffith is the Insured under the above policy definition. Since Griffith (the Insured) committed the assault and battery, the assault and battery is not deemed to be an accident. Therefore, there is no coverage under the policy because the policy covers only injuries caused by accident, not those caused by wilful force or violence.
The case of Morgan v. Greater New York Taxpayers Mut. Ins. Ass’n, 305 N.Y. 243, 112 N.E.2d 273, which is relied on by the majority opinion, is not in point in my opinion. There the policy Declarations were as follows:
“1. Name of Assured Murray Cronin and Morris Levanthal * * *
“3. The Assureds are individuals (Individual, Partnership, Corporation, Trustee or Estate).”
The Court of Appeals of New York quoted the above declarations then said:
“ * * * The situation then is the same as if separate policies had been issued to Cronin and Leventhal and we were concerned here only with the policy issued to Cronin. * * * ”
The New York Court then stated that the coverage for Cronin, being a named in*300sured under his own separate policy (in effect), could not be defeated just because the assault was committed by an additional insured.
The above situation is the exact opposite of the situation presented by the instant case. Here we have the assault committed by the named insured, the partnership, and an additional insured attempts to have coverage extended to him notwithstanding that fact.
To me it is plain that the insurer never intended to assume liability for assaults and batteries of either one of the members of the partnership.
I dissent.