(dissenting).
The majority opinion correctly states and follows the general rule that the obligation of a liability insurance company, under a policy provision requiring it to defend an action brought against the insured by a third party, is to be determined by the allegations in the third party’s petition. However, the opinion ignores a very real and material distinction between those cases following the general rule and the instant case. In this case there is a conflict or variance between the facts as alleged in the third party’s petition and the actual facts as known or ascertainable by the insurer.
The trial court found as a fact that the insurer “ * * * well knew or was well advised in a timely and reliable manner that the assault in question was made by the customer and not by the plaintiff and that the plaintiff was in no way at fault or to blame for the occurrence in question.” By brief, appellant concedes that this finding of the trial court is true. In my opinion this fact takes this case out of the general rule. I think it is significant that all cases cited in support of the majority opinion are cases in which there was no conflict between the facts as alleged in the petition and the actual facts. I therefore conclude those cases cited in the majority opinion are not controlling here.
This proposition is well stated in 50 A.L.R.2d 497 in the following language:
“The general rule to the effect that the determination of whether or not the claim made against the insured is one which by the terms of the contract the insurer is required to defendant depends upon the facts stated in the complaint or petition in the action against the insured is based upon the ordinary or typical situation in which there is no conflict between the facts as alleged in the petition and the actual facts as they are known to or ascertainable by the insurer. In other words, the general rule as stated above does not take into account the possibility that such a divergence may exist; in fact, the rule may affirmatively presuppose the absence thereof. Consequently, the cases supporting the rule are of hardly any value as authority in a situation where such divergence does exist.”
As previously stated, it is conceded by appellant that in the instant case there is a conflict between the allegations in the third party’s petition and the actual facts known. I do not think violence would be done to the record if it were said that appellant would also concede that it would have been under a duty to defend this suit against the *896insured if the allegations had coincided with the actual facts. Only two Texas cases have passed directly on this question. Mass. Bonding & Ins. Co. v. Roessler (Civ.App.) 112 S.W.2d 275 (error dismissed); Trinity Universal Ins. Co. v. Bethancourt (Civ.App.) 331 S.W.2d 943 (no writ history). In the Roessler case, supra, the policy insured against liability for bodily injury or death accidentally suffered by anyone through the ownership, maintenance or use by the insured of certain designated premises. It contained an exception with respect to injuries to and death of the employees of the insured coming within the Workmen’s Compensation Act. A petition in a death action against the insured alleged that the deceased had been employed by insured in the digging and hauling of gravel in connection with the premises described in the policy, and that deceased met his death through a cave-in in a gravel pit in which he had been required to work by the insured’s foreman. The petition alleged certain acts of negligence on the part of the insured which resulted in the deceased’s death, and further alleged that the insured had more than three employees but that no workmen’s compensation insurance was carried as required by law. After receiving notice of this suit the insurer investigated the facts and discovered that all of insured’s employees at the time in question were either farm or domestic laborers. The Workmen’s Compensation Act would not require workmen’s compensation insurance to be carried with respect to domestic or farm laborers no matter how many might be employed by a single employer. Despite knowledge of these facts the insurer refused to defend the death action. The Court of Civil Appeals held in this situation that the insurer could not rely on the allegations in the petition as justifying its refusal to defend that action. There the court held, “The appellant (insurer) had investigated and knew the facts * * * it knew ap-pellee was preparing the premises for farm purposes and that all employees thereon were either domestic or farm laborers and that he was not subject to the Workmen’s Compensation Act. Under these conditions it could not ignore the Griffin suit because it contained an allegation to the contrary, especially when that allegation was clearly a conclusion of the pleader.”
The Bethancourt case, supra, followed the Roessler case in holding that where there is a variance between the allegations and the known facts the rule is that in determining its duty to defend the insured in an action brought against him by a third party, the insurer should not look exclusively to the allegations but is also to be guided by the actual facts of which it has knowledge. I remain convinced these two cases state the law in this State under these circumstances. In my opinion there are no Texas cases holding to the contrary. It is my view that the Roessler and Bethancourt cases are not in conflict with the general rule as set out in the Baldwin Motor Company and Moritz cases and the other cases cited in the majority opinion. These two lines of cases are clearly distinguishable and each reached the proper result. Well reasoned decisions in other jurisdictions have followed the rule set out in the Roessler and Bethancourt cases. They include Marshall’s U. S. Auto Supply v. Maryland Casualty Co., 354 Mo. 455, 189 S.W.2d 529; State ex rel. Inter-State Oil Co. v. Bland, 354 Mo. 622, 190 S.W.2d 227; United States Fidelity & Guaranty Co. v. Briscoe, 205 Okl. 618, 239 P.2d 754; Hardware Mutual Casualty Co. v. Hilderbrandt, C.A. 10th Okl., 119 F.2d 291; University Club v. American Mutual Liability Ins. Co., 124 Pa.Super. 480, 189 A. 534, in addition to McGettrick v. Fidelity & Casualty Co. of N. Y., supra, cited in the majority opinion.
This writer concedes that one pronouncement in the Bethancourt case was perhaps erroneous when it stated: “ * * * we think the appellant (insurer) was under a duty to ascertain the facts of the alleged cause of action before declining to defend the suit.” The result and reasoning of both the Bethancourt case and this dissenting opinion are not dependent on this holding. *897This pronouncement was mere surplusage and did not affect the outcome of the case. In both the Bethancourt case and the Roes-sler case, and the instant case, the insurer did in fact know the actual facts which were in conflict with the pleadings.
For the reasons stated I would affirm the judgment of the trial court.