*598Dissenting Opinion by
Mr. Justice Musmanno:John Wilson, co-owner of a restaurant, bar and rooming house in Philadelphia, apparently realizing that untoward incidents could occur in his place of business, contracted with the Maryland Casualty Company for indemnity in the event he should be sued as the result of occurrences arising in his establishment. Upon receipt of certain premiums the Maryland Casualty Company agreed to hold Wilson harmless in all legal actions arising out of accident even if such suits should be “groundless, false or fraudulent.”
Human nature being what it is and alcohol being what it is, both parties realized that possible altercations in Wilson’s place of business could take on the aspect of ardent belligerencies which could result in assaults and batteries. In full realization of these possibilities, the insurance company agreed to indemnify Wilson even where assault and battery was involved. The pertinent reference in the policy read: “Assault and battery shall be deemed an accident. . .” This interpretation was modified by the proviso “. . . unless committed by or at the. direction of the insured.”
On January 28, 1951, a John A. Lees, while a patron in Wilson’s taproom, sustained certain injuries which he claimed were caused by Wilson’s hitting him with a blackjack. Wilson denied that he had struck Lees and asserted that Lees’ injuries were the result of an accident. When Lees then entered a suit against Wilson, Wilson called on the Maryland Casualty Company to defend him, but the company refused to undertake the defense. Deliberating on the alternatives of going to court, with all the concomitant notoriety accompanying such a trial regardless of outcome (and its consequent bad effect on his business) and paying Lees money even though he was not, from Wilson’s point of view, entitled to any money, Wilson *599settled Lees’ claim for $750. Wilson then asked the insurance company to reimburse him for the amount he had to pay Lees, but this request also fell on deaf ears.
Wilson now brought suit against the insurance company, declaring under oath that he had not committed an assault and battery on Lees and that Lees’ injuries were the result of an accident. The insurance company resisted recovery on the ground that Lees had told the truth and Wilson had told an untruth. And the Majority of this Court has affirmed the insurance company’s position.
This leads me to inquire: Since when, in our system of jurisprudence, has a litigant been allowed to act as judge and jury? The Maryland Casualty Company is a defendant in a suit brought against it by John Wilson. It replies with the dogmatic conclusion that Wilson struck Lees. How does the insurance company know that Wilson struck Lees? It was not present, through any officer or agent, in the taproom when the incident of January 28, 1951, occurred. On what possible basis can it assert that Wilson was at fault on January 28, 1951, and Lees was without fault?
It is to me an amazing thing that an insurance company, being sued on a contract of insurance, can summarily escape liability by simply asserting, through hearsay, that the insured is lying.
In its Opinion the Majority quoted the exclusionary clause in the insurance contract but did not stop to analyze it. Let me repeat that clause: “Assault and battery shall be deemed an accident unless committed by or at the direction of the insured.” Unless committed by or at the direction of the insured is as categorical a statement as can be made. Committedby means actually committed by, not assertedly committed by, *600not hearsayedly committed by. Where is the adjudication in a criminal court, civil law court, equity, arbitration proceedings, or in any other tribunal which proclaims that Wilson committed an assault and battery? The only verdict that Wilson committed an assault and battery comes from one of the officials of a party litigant. And since when does the desk of a litigant substitute for the jury box or the judge’s bench?
In the present state of these proceedings Wilson is not pressing this Court to decide he is entitled to $750. He is only asking that he be given an opportunity to prove before a jury that Lees’ injuries were the result of an accident and that therefore, under the contract for which he paid premiums, he is entitled to reimbursement for what he was unjustly required to pay Lees. Is this asking too much? Despite all the cases cited in the Majority Opinion, I fail to find one principle of law quoted which declares that where a strict question of fact is involved a litigant may not have that question decided by a jury.
The Majority Opinion quotes from Wilson’s Complaint in which he says that “an altercation took place among the patrons of Plaintiff’s restaurant and bar with the result that certain accidental injuries Avere alleged to have been sustained by John A. Lees . . . ,” and that Lees instituted an action in trespass against Wilson to recover damages on account of the injuries Lees sustained. The Majority Opinion then makes the following startling observation: “Had the complaint stopped there it might Avell be that the Company would have been obliged to defend the action because of the averment that accidental injuries Avere alleged to have been sustained by Lees.” The Majority Opinion, however, then adds that since Wilson did not stop there and attached a copy of Lees’ Complaint in Avhich Lees charged assault and battery committed by Wil*601son, Wilson thus took himself out of Court. In other words, if Wilson had been less than honest and had said nothing about Lees’ Complaint then the Insurance Company would have been required to defend him. However, since Wilson told the whole truth the insurance company was then entitled to deny all responsibility and, upon this mere naked denial, refuse to pay the sums of money it had contracted to pay under its contract!
The Majority says that Wilson “presents the curious argument that merely because he asserted that Lees’ charge that he had committed assault and battery upon him was groundless, therefore the Company was obliged to defend the action.” I would say, in this respect, that this observation on the part of the Majority is more curious than the curiosity it attached to Wilson’s position. If, in fact, Lees told an untruth, how else would Wilson assert that untruth except to say that the charge of assault and battery was groundless?
The Majority then goes on to say that if Wilson’s “contention were correct the Company would be obliged to defend any and every action brought against its insured, no matter what its nature, if informed by the insured that the claim was false or if it was in fact false, even though liability in respect to it was not insured by the terms of the policy.” This observation on the part of the Majority is even more curious than its preceding one. And the answer to it is: of course, the company is required to defend in every action brought against its insured which comes within the provisions of the contract. The great fallacy in the whole Majority Opinion is that it fails to distinguish between what is actually outside the contract and what the insurance company says is outside the contract. Certainly the insurance company is only re*602quired, as the Majority properly says, to defend such claims as are. covered by the policy. But who is to determine whether claims are or are not covered by the policy? The insurance company? Is the insurance company to be the sole arbiter of its own obligations? The contract specifically says, as heretofore quoted, that “assault and battery shall be deemed an accident unless committed by or at the direction of the insured.” This proviso does not say, as the Majority apparently seems to think it says, “Assault and battery shall be deemed an accident unless, in the company’s opinion, committed by or at the direction of the insured.”
The Majority Opinion quotes from the case of Fullmer v. Farm Bureau Mutual Automobile Insurance Co., 350 Pa. 451, in which Mr. Justice Stern (now Chief Justice) said: “It is scarcely more than a legal platitude to say that in a suit on an insurance policy the primary requisite for recovery is proof by the plaintiff that the claim comes within the general coverage of the policy.” It will be noted, that, the quotation says that primary requisite for recovery is proof that the claim comes within the coverage of the policy. In that case there was actually a trial and the plaintiffs were given an opportunity to show that their claim did come within the provisions of the contract entered into between the insurance company and the insured (the defendant in the original trespass suit). But in the case at bar there was no trial. Wilson was not given an opportunity to supply proof that his case comes within the provisions of the contract he has with the Maryland Casualty Co. If he were allowed what the plaintiffs were allowed in the Fullmer case, he would have no right to complain, and I would not be writing this dissent..
*603The same principle was involved in Springfield Township v. Indemnity Insurance Co. of Worth America, 361 Pa. 461, also cited by the Majority as authority. It quotes from the Opinion written by Justice Patterson that it is “the nature of the claim which determines whether the insurer is required to defend.” But in that case there had also been a trial, and in the trial it was demonstrated that the plaintiff’s proofs did come within the provisions of the liability policy.
The Majority in its Opinion uses the word “claim” synonymously with Complaint, but as revealed in the Springfi,eld Township case and the Fullmer case the word claim is employed in its over-all generic sense to cover everything that the plaintiff advances as proof at the trial. Again I repeat that Wilson has not been given a chance to show what his claim is. His claim is not what is contained in Lees’ Complaint. His claim consists of what he contends he can prove at the trial.
The Majority makes the same mistake of confusing claim with Complaint in the case of Knorr v. Commercial Casualty Insurance Co., 171 Pa. Superior Ct. 488. There again there was a trial and there again it was the plaintiff’s proofs that failed, and not his Complaint or Statement of Claim.
The Majority makes the astounding statement: “There is no authority in any jurisdiction whatever to support plaintiff’s position.” The very case of West Philadelphia Stock Yard Co. v. Maryland Casualty Co., 100 Pa. Superior Ct. 459, quoted by the Majority, is one authority in our own jurisdiction for the plaintiff’s position. There the plaintiff stock yard company was sued by two persons who had been injured by steers that had escaped from a motor vehicle which had transported the steers. The stock yard company called on the Maryland Casualty Company (evidently *604the same company involved in the case at bar) to defend the suits brought against it. The insurance company refused. The stock yard company then defended on its own and won the suits. It then brought an action against the Insurance Company to recover the expenses incurred in defending the lawsuits. The insurance company replied that it was not liable because the injuries caused by the steers were not covered by the policy which excluded automobile operations, the clause in question reading: “ ‘This agreement does not cover any accident directly or indirectly caused by any automobile, vehicle or by any draught or driving animal or vehicle owned or used by the assured, or by any employee of the assured in charge of such or any such vehicle or animal, unless such accident occurs upon premises owned by or under the control of the assured, or on the public ways immediately adjacent thereto, etc.’ ” Under the theory advanced by the Majority here, this exclusionary clause would have ended the case for the stock yard company since the insurance company stated that the accident occurred in a manner not covered by the policy. But the Superior Court held otherwise. In affirming the verdict obtained by the stock yard company in the court below, the Superior Court said: “It is very evident that the escape of a steer in the process of unloading is not an ‘automobile accident’ in common parlance, and we are not called upon to give the term a broad meaning in order to allow the company to escape liability.”
The Majority says that “the rule everywhere is that the obligation of a casualty insurance company to defend an action' brought against the insured is to be determined solely by the allegations of the complaint in the action, and that the company is not required to defend if it would not be bound to indemnify the insured even though the claim against him should *605prevail in that action.” The fault here lies in the fact that the Majority does not distinguish between Complaint in the action brought by the injured person against the insured and the Complaint brought by the insured against the insurance company. It is the Complaint or Claim of the insured against the insurance company which is the criterion of liability; not the Claim by the victim of the accident against the insured. If the Majority had made this distinction it would not have fallen into the grievous error it has committed by the decision in this case. The Complaint or claim of John Wilson does come within the provisions of the insurance policy.
The faulty logic running through the whole Majority Opinion is demonstrated no less vividly in the footnote on page 1 which says: “Of course a person could not contract for indemnity against liability for damage or injury caused by his own wilful act, much less an assault and battery committed by him. A contract to insure against such liability would obviously be void as being in violation of public policy.” This again assumes that Wilson did commit an assault and battery just because Lees asserts he did. Wilson denies he committed assault and battery and this Court has refused him an opportunity to prove that denial.
I believe that this decision of the Majority will work havoc in the whole insurance law of the Commonwealth, it will impair the obligation of insurance contracts and it will work great injustices in the field of indemnification.
I accordingly vigorously dissent.'