(concurring).
I believe the conclusion arrived at in the opinion prepared for the Court by Mr. Justice Dyer to be correct, but for the reasons herein appearing I desire to file this concurring opinion.
The two issues to be decided in this case are: (1) does the policy in question cover the insured’s liability for punitive damages “arising out of ownership, maintenance or use of the automobile”; and (2) if punitive damages are covered by the terms of the policy allowing the insured to protect himself against loss by purchasing an automobile liability insurance policy, is such a contract contrary to the established public policy of this State? My answer to the first issue is yes and to the second the answer is no.
*650Although I agree with the conclusion reached on both of the above questions, I desire to elaborate as follows:
The policy contract provides under Coverage A “that the insurance company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages, * * * ’ ’, etc. (Emphasis supplied.)
' The mere reading of the language of the quoted provision of the policy is sufficient to convince me that the company is obligated to pay all damages assessed against the insured growing out of the ownership, maintenance or use of the automobile listed in the policy.
“* ■* * (l)t is clear that the average insured contemplates protection against claims of any character caused by his operation of an automobile', not intentionally inflicted.” 7 Appleman, Insurance Law and Procedure, Section 4312, p. 132 (1962).
There is no indication in the case at bar that the insured willfully, that is intentionally, inflicted the injuries giving rise to this lawsuit. On the contrary, the allegation is that the injuries resulted from the insured’s negligence.
Crutchfield had been operating his automobile while intoxicated, but there is no allegation that he intended to inflict bodily harm or injuries upon the plaintiff. The declaration says that the plaintiff was injured in an automobile accident “due to the negligence of said Norman Frank Crutchfield.”
■ The facts might support the jury in finding his negligent conduct to be wanton or gross, but certainly not as willful under the allegations of the declaration.
*651Gross negligence has been defined as “such entire want of care as would raise a presumption of a conscious indifference to consequences.” Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129, 178 S.W.2d 756, 757 (1944).
In Daniels this Court equated for all practical purposes wanton and gross negligence. It is apparent, therefore, that coverage under the automobile policy of Crutchfield should not be denied on the ground that his conduct was intentional or willful in this case.
Practically every decision on the point raised has concluded that coverage did exist under policies having substantially the same language, as here. General Casualty Co. of America v. Woodby, 238 F.2d 452 (6 C.C.A.Tenn. 1956); Pennsylvania Threshermen and Farmers Mutual Casualty Insurance Co. v. Thornton, 244 F.2d 823 (4 C.C.A.1957); and United States Fidelity and Guaranty Co. v. Janich et al., 3 F.R.D. 16 (S.D.Cal.1943).
Another factor lending strength to the argument that such coverage exists is the principle that “equivocal clauses in insurance policies (are) to be construed against the insurer.” 63 Col.L.Bev. 944, 949 (1963). Of course, the basic underlying principle for construing policies strongly against the insurer where there are ambiguities or equivocal clauses is that the insurer writes its policies and the law presumes they are written favorably to the one who drafts them. The Tennessee cases of Universal Life Insurance Co. v. Lillard, 190 Tenn. Ill, 228 S.W.2d 79 (1950), and English et al v. Virginia Surety Co., 196 Tenn. 426, 268 S.W.2d 338 (1954), are in accord with this principle.
I, therefore, am in agreement with the prime opinion that the insurance policy in question would prompt the *652average policyholder to expect to be protected under circumstances, as here. I disagree, however, that such expectation affords the basis of distinguishing on the public policy grounds the result reached in Northwestern National Casualty Co. v. McNulty, supra, from that reached in the instant case.
(2) Having disposed of the question of coverage under the policy for all legal liability of the insured, I shall now discuss the public policy issue. It is true that most cases which uphold insurance protection for payment of punitive damages awarded against an assured fail to discuss the public policy question. However, it does not follow, a fortiori, that such cases would have reached a contrary result if the public policy issue had been squarely met and passed on. I believe the idea is implicit in the cases that such insurance protection does not violate public policy.
In the early years of the casualty insurance business it was argued by some that by allowing one to insure against his own negligent acts that carelessness would be encouraged, resulting in increased injuries and deaths on the highways. Regardless of the soundness of this idea, the insurance industry has grown and prospered and has become a stable part of our economy.
In Miller v. United States Fidelity & Guaranty Co., 291 Mass. 445, 197 N.E. 75 (1935), it was said: “There is nothing against public policy in the making or enforcement of a contract of insurance of this kind [that is casualty insurance].”
The thought that insurance protection providing for the payment of compensatory damages awarded for *653gross or wanton negligence would result in increased recklessness was next advanced and argued. In the case of Travelers Insurance Co. v. Reed Co., 135 S.W.2d 611 (Tex.Civ.App.1939), this argument was rejected.
In the McNulty case insurance protection was disallowed in order that the insured might be punished for his wrongdoing and to deter him and others from similar conduct. Yet, on identical facts, another jury might have returned an award limited to compensatory damages only in which ease the wrongdoer would be fully protected under provisions of a policy such as here.
The line of demarcation between the allowance of punitive damages and compensatory only is too thin and exacting in my opinion to apply coverage in the one case and deny coverage in the other. Verdicts of juries are unpredictable.
Figures are not available to show the percentage of cases where punitive damages are allowed, but I am confident such awards are unusual rather than usual.
In the gross or wanton negligence ease, the wrongdoer is protected by his insurance policy without question. How then can it be logically argued that as a general rule a denial of insurance protection for payment of punitive damages will deter the wrongdoer? As far as punishment is concerned it should be the nature of the misconduct rather than the purpose of punitive damages which is determinative. For willful wrongdoing the State, acting through it criminal statutes, may, and quite often does, inflict punishment by way of fine or' imprisonment, or both.
The allowance of punitive damages is well engrained in the case law of this State. As a matter of fact, many *654cases have upheld the right of a plaintiff to recover punitive damages from someone other than the immediate wrongdoer. In the case of Knoxville Traction Co. v. Lane, supra, and Union Railway Co. v. Carter, supra, the employer was held liable to the plaintiff for punitive damages assessed against its employee. Also, precedent exists for holding an insurer liable on a surety bond on a public officer for punitive damages arising from the misconduct of such officer’s subordinate. In support of this statement are the cases of State ex rel. Coffelt v. Hartford Accident & Indemnity Co. et al., 44 Tenn.App. 405, 314 S.W.2d 161 (1958), and Garner v. State ex rel, Asians, 37 Tenn.App. 510, 266 S.W.2d 358 (1953).
Of course, it is true in the Lane and Carter cases, where the employer was held vicariously liable for punitive damages assessed against its employees, he had a cause of action against such employee to recover the amount paid out in response to the judgment. But, this is always true in every case when the principle is caused to pay damages for the negligent conduct of his servant. In most cases, however, the employer or the principle is left only with a worthless cause of action against his employee or servant, in which event the latter escapes liability because he is without funds to pay a judgment if one be obtained against him.
In the case of Home Beneficial Association v. White, supra, it was held that a contract may not be held invalid as against public policy unless some definite public detriment will probably result.
I cannot see that the contract between the parties here is against public policy, nor will the enforcement of the terms thereof result in any detriment to the public.
*655It would, be pure speculation to conclude that by denying coverage that accidents on the highways would decrease or that operators of automobiles would be any more careful in their driving habits or the care with which they operate them. And, too, regardless of how careful the operator may be, situations could and do arise where the jury would feel warranted on the facts of the case in awarding punitive damages when another jury, on the same facts, would feel warranted in denying punitive damages.
My conclusion is that if the insurance industry feels that punitive damages protection should not be afforded under automobile liability policies, it can very easily make a provision in the exclusions section to that effect. Until this is done, I am of the opinion that the insured should receive the coverage sought to be denied in this case.
T.C.A. sec. 56-603 (a) provides that every insurer shall file with the commissioner every manual of classifications, rules and rates, every rating plan, etc. Every such filing shall indicate the character and extent of the coverage contemplated and shall be accompanied by the information upon which the insurer supports the filing.
The form of the policy in question and its contents bear the stamp of approval of the Commissioner. The public has constructive notice of such approval and purchases insurance coverage on automobiles with this knowledge.
If change is to be made in the provisions of this standard policy and the coverage afforded thereby, it should be made in the office of the Commissioner and not by the Court.