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District Court of Appeal, Second District, Division 3, California.

COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Plaintiff and Respondent, v. Dysart Carmack PRESSLEY, Defendant and Appellant.

Civ. 28746.

Decided: August 26, 1966

Sussman & Spevack, Los Angeles, for appellant. Betts & Loomis and Trevor A. Grimm, Los Angeles, for respondent.

This is an appeal by one of the defendants, Dysart Carmack Pressley, from a summary judgment entered in an action for declaratory relief brought by the plaintiff Commercial Insurance Company of Newark, New Jersey, to determine whether, under the terms of a comprehensive personal liability policy issued by it to Jim Lee Baker, the insurance company was obligated to further defend Baker and to pay any judgment which should be rendered against him in a pending action brought by Pressley against Baker for personal injuries arising out of an altercation between the two men at Baker's residence.1  The policy contained an exclusionary clause which provided that the policy did not apply “to bodily injury or property damage caused intentionally by or at the direction of the insured.”   The complaint filed by Pressley against Baker contained two causes of action.   In the first cause of action it was alleged that Baker did “wilfully, maliciously assault, strike, beat and bruise” Pressley and did maliciously and wantonly cause him to sustain the specified personal injuries, including the severance of the upper portion of Pressley's left ear.   In the second cause of action it was alleged that Baker did “negligently strike, beat and bruise” Pressley and did cause the described personal injuries.

 After the respective answers of Baker and Pressley had been filed in the present case, the plaintiff insurance company filed its motion for summary judgment, basing its contention that there was no triable issue of fact upon portions of the deposition of Baker and of the deposition of Pressley taken in the personal injury action.2

In his deposition Pressley testified that the fight started at about 2:30 a.m. on March 4, 1962.   He had been asleep but he awoke when he heard Baker's voice.   Baker accused him of talking about him behind his back.   Pressley said that that was not true.   Other portions of Pressley's testimony were:  “A.   Jim [Baker] walked across the living room, sat down on the sofa beside me.   I was still laying down.   I didn't plan to get up.   I was going back to bed.  * * * A.  Then he—I don't recall the conversation at this point, but he started talking to me again.   At this point he hit me on the face openhanded.  * * * Q.  What happened immediately after he slapped you?   A.  This I am a little foggy on, too;  but I believe he got up and started to go into his bedroom, * * * and then he came back again.  * * * Q.  After the slap did he walk back to the couch?   A.  Yes, sir.   Q.  Did he sit down?   A.  No, sir.   Q.  He stood right over the couch?   A.  Yes.   Grabbed me and pulled me up.  * * * Q.  When you say he lifted you up, did he lift you bodily right off the couch and stand you up?   A.  Yes, sir.   Q.  At the time he was doing this, did you give any resistance or make any remarks?   A.  I was trying to figure out a way to get out of the house.  * * * Q.  So he lifted you up and stood you right in front of him, then?   A.  He pulled me to my feet and backed off, and again he told me to put up my fists and fight.  * * * A.  At this time he asked me to put up my fists.   He says, ‘Come on, fight.’  * * * A.  The next parts are rather hazy, because the next thing I know I am on the floor.  * * * Q.  Why is it that you can't remember how you got to the floor?   A.  Well, because evidently—I didn't fall.   He shoved me, and when you are falling into space, you loose [sic] the fact of your surroundings for—this is only for maybe two, three or four seconds.  * * * A.  Well, he threw me down.  * * * The next recollection I have, sir, is that I hit the ground.   Jim jumped on top of me, gets his knees on each of my shoulders.  * * * Q.  Did he look like he was angry at that time?   A.  Yes.  * * * Q.  All right.   How long did this last with him just sitting on your arms?   A.  Seconds.   This whole thing takes maybe a minute, or so.   At this time he was hitting me in the face.  * * * A.  He was hitting me, I believe, with both hands.  * * * Q.  From the way he was striking you you couldn't tell whether he was doing it with a closed fist or open hand?   A.  No, it was too rapid.   Q.  How many times would you say he struck you?   A.  About seven, eight, or nine times.  * * * A.  It was very rapid.   That's why I thought it might be with both hands.  * * * A.  Then I recall sort of a blur, and the next thing I know, a sudden pain on my ear.  * * * Q.  Were you conscious all the while?   A.  Yes, sir.  * * * A.  I was closing my eyes trying to protect myself, trying to get my hands up in front of me (indicating).  * * * A.  I was trying to put both hands in front of my face.   I never got them up.  * * * Q.  When he came to the last one, did you look at him right after the last blow?   A.  I can't recall this, sir.   I can recall his face coming toward me.  * * * Q.  At this time he was not striking you?   A.  No.   Q.  What did you do as his face came toward you?   A.  It came towards me—it was sort of a blur, and then the thing I remember is a sharp pain on my head.   I didn't know what he had done to it.   Q.  You had this sharp pain where?   A.  On my ear.   Q.  Left ear.   A.  Yes, sir.  * * * A.  * * * I brought my arms up, and sort of threw him off balance.  * * * Q.  All right.   Then you threw him off of your body, and he went over to the left?   A.  Yes, sir.  * * * A.  I jumped to my feet—this part right here is not too clear—I put my hand to my ear and ran.  * * * ”

Portions of the testimony of Baker set forth in his deposition were:  “A.   I came in my door into my living room.  * * * A.  Well, I approached Pressley, and I wanted to talk to him, sit on the sofa with him.  * * * A.  Well, he didn't seem like he was in much of a mood for talking, but I wanted to talk to him about a few points, and more or less shoved me away, and said, ‘Let's talk about it tomorrow.’   We were wrestling on the floor before I knew it and he was on top of me.   I didn't know what he was going to do, what his intention was, so I bit his ear.   He flung his head, and he was gone out the door.”   At a later point in his testimony, Baker's version of the incident was in part as follows:  “Q.   What happened after the conversation ended?   A.  Well, that is when he, Pressley, shoved me, and he says, ‘I don't want to talk to you.   We will talk about it in the morning.’   Q.  Where was it that he shoved you?   A.  From the sitting position on the sofa.  * * * Q.  He took both hands and pushed you aside?   A.  Yes.   Q.  Where was it that his hands landed on you, if they did?   A.  Well, I think it was right on my shoulders, and then I grabbed him and we were wrestling on the floor all of a sudden.   It was very fast.   Q.  After you landed on the floor, did you testify earlier, Mr. Baker, that you bit his ear?   A.  Yes.   Q.  Do you remember which ear it was that you bit?   A.  I believe it was his left ear.”

Another portion of Baker's deposition was:  “Q.   In the course of your wrestling with Mr. Pressley at your residence, did you take aim at his ear?  * * * Did his ear just come into your mouth accidentally?   A.  I didn't plan on his ear being there.   Q.  I understand that you did not plan on it, but did the fact that his ear was in your mouth surprise you at the time?   A.  Yes.   Q.  Were you aware of the fact that you had his ear in your mouth at the time it was there?   A.  No.   I was—I wasn't fully aware until after what happened, it was so fast.   Q.  When you were biting his ear were you aware of the fact that you were biting his ear?   A.  Well, my purpose was to—Q.   I am not asking you your purpose;  I am asking you of what you were aware, what you physically, sensibly felt at the time.   Did you know that you had someone's ear in your mouth?   A.  Yes.   Q.  Did you know that you were making a bite on the ear when you were doing it?   A.  Yes, but not too intense.   I didn't think it was that intense, no.   Q.  You knew that your teeth were coming into contact with the skin and cartilage in his ear?   A.  Yes.”

In his declaration in opposition to the motion for summary judgment, Baker stated that “when he bit Pressley's ear it was an accident in that said act was performed in self-defense.”

 It is true that an assault or battery cannot be committed by acts done in self-defense because such acts are not unlawful.  (Walters v. American Ins. Co., 185 Cal.App.2d 776, 783–784, 8 Cal.Rptr. 665;  McAfee v. Ricker, 195 Cal.App.2d 630, 635, 15 Cal.Rptr. 920.)   But the testimony of Baker, as set forth in his deposition, discloses no basis for a claim of self-defense.   The fact that Pressley pushed him away from the place where he was resting merely showed that Pressley wished to terminate the conversation and be left alone and, as a matter of law, it did not suffice as evidence of aggressive conduct on the part of Pressley sufficient to necessitate self-defense.   Moreover, as set forth hereinabove, Baker testified that upon being pushed away by Pressley he “grabbed” Pressley and they “were wrestling on the floor all of a sudden.”   Baker further testified that he knew that his teeth were coming into contact with the skin and cartilage of Pressley's ear.   The only reasonable inference to be drawn from Baker's testimony was that he intentionally caused the bodily injury suffered by Pressley.  (See Meyer v. Pacific Employers Ins. Co., 233 CAl.aPp.2d 321, 327, 43 cAl.rPtr. 542.)   tHere is nothing in Pressley's deposition which supports an inference to the contrary.   Consequently, the policy of insurance did not afford coverage to Baker with respect to the occurrence.  (See Abbott v. Western Nat. Indem. Co., 165 302, 305, 331 P.2d 997.)

It is true that under its policy the insurance company undertook to defend “any suit against the insured alleging such bodily injury * * * and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent.”   It was stated in Lamb v. Belt Casualty Co., 3 Cal.App.2d 624, at page 630, 40 P.2d 311, at page 314 “In determining whether or not the appellant was bound to defend, its denial of liability and refusal to defend, based upon its own investigation of the facts in the case, are to be disregarded.   The language of its contract must first be looked to, and next the allegations of the complaints in each action for damages against the insured.” 3

 But in a case in which, under the law as just stated, the insurer is obligated to undertake the defense of an action brought against the insured, the question still remains as to whether a point may be reached in the proceedings at which such duty may cease.   It was stated in Firco, Inc. v. Fireman's Fund Ins. Co., supra, 173 Cal.App.2d 524, at page 528, 343 P.2d 311, at page 313:  “We have presented to us, therefore, an action based upon a claim that may or may not be covered by the policy.   In such a situation the insurer is obligated to undertake the defense of the action and to continue such defense at least until it appears that the claim is not covered by the policy.   If and when that becomes certain the insurer may turn back the defense.”   The court then quoted from the opinion of Judge Learned Hand in Lee v. Aetna Casualty & Surety Co., supra, 178 F.2d 750, portions thereof being as follows (178 F.2d at pages 752–753):  “In most cases—the case at bar was one—it will not be difficult for the insurer to compel the injured party to disclose whether the injury is within the policy;  and, if it transpires that it is not, the insurer need go on no longer.  * * * It follows that, if the plaintiff's complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the defendant to undertake the defence, until it could confine the claim to a recovery that the policy did not cover.”   Thereafter the court in the Firco case stated (173 Cal.App.2d at pages 529–530, 343 P.2d at page 314):  “We think that we have a case here where the third party action against the assured appears to have been based upon a claim that might or might not turn out upon the trial of that action to have been one covered by the policy;  that, therefore, the duty to defend the action arose when the action was begun and will continue until in the proceedings in that case it certainly appears that the claim cannot eventuate in a judgment which the insurer is obligated to pay.”

 Under the reasoning of the court in General Ins. Co. of America v. Whitmore, 235 Cal.App.2d 670, 45 Cal.Rptr. 556, in an appropriate case an insurer may have recourse to the remedy of declaratory relief for the purpose of obtaining a determination that the duty to defend has ceased because the claim asserted by the injured person cannot eventuate in a judgment which the insurer is obligated to pay.   The policy of insurance involved in the Whitmore case bound the insurer to defend the persons insured against claims of third persons, and to pay any judgment resulting therefrom, arising out of the negligence of the persons insured.   The insurer contended that the accident therein involved was proximately caused by wilful and intentional acts for which no coverage was provided under the policy, a contention with which the insured persons took issue.   In reversing a judgment of dismissal entered after a demurrer to the insurer's first amended complaint had been sustained without leave to amend, the court stated (235 Cal.App.2d at pages 675–677, 45 Cal.Rptr. at page 560):  “For example, since coverage under the policy is denied by reason of the wilful and intentional acts alleged in the complaint, plaintiff [insurer] could not possibly advance that claim in the damage suit which would be wholly inconsistent with the interests of its assureds and render the latter liable as a matter of law.  * * * No prejudice, on the other hand, will be suffered by the tortfeasees if plaintiff's claims to declaratory relief are tried on their merits.   Contrary to the trial court's view, they would not be compelled to litigate their claims ‘twice.’   Their right to recover against the Whitmores would not be in issue in the present proceeding, and the principles of res judicata and collateral estoppel could not later be invoked (Exchange Cas. & Surety Co. v. Scott, 56 Cal.2d 613, 620, 15 Cal.Rptr. 897, 364 P.2d 833);  * * * The additional point is made by the Whitmores that plaintiff cannot claim non-coverage under the policy (due to the minor's intentional acts) because the amended pleading expressly admits the company's agreement to ‘defend’ the named insureds and to ‘indemnify’ them against any claims that might be made by third parties as a result of the insureds' negligence;  the Drucker action [for personal injuries], it is pointed out, asks damages for negligence—there is no allegation of wilful or intentional acts.   But plaintiff in this proceeding is not litigating the issue of negligence;  it is a proceeding in which a determination is sought that the acts involved were wilful or intentional and thus excluded from coverage.   As of now plaintiff owes its assureds some measure of responsibility, and courts have declined to ‘take [any] issue with the right of the insurance company to file an independent action to determine [such] responsibility * * *.’  (Fireman's Fund Ins. Co. v. Chasson, supra, 207 Cal.App.2d 801, 806, 24 Cal.Rptr. 726, 729.)   The case just cited also holds that where, as here, the facts alleged in a complaint against the insured support a recovery for an occurrence covered by the policy even though the insurer has knowledge that the injury is not in fact so covered, it is nonetheless the insurer's duty to defend unless relief is obtained by way of a declaratory judgment.  ‘ * * * [O]nce the judgment in the declaratory relief action becomes final (in this case upon the determination of this appeal), the insurer's duty to defend such actions shall cease since the duty to defend does not continue beyond the final determination that the claim is not within the coverage of the policy.  [Citations.]’ (Fireman's Fund Ins. Co. v. Chasson, 207 Cal.App.2d 801, 807, 24 Cal.Rptr. 726, 729.)   The above, it would appear without question disposes of the Whitmores' claim that the present proceeding is premature;  likewise governed thereby is their contention that there is no present justiciable issue between the insurer and the insured.”

 The present case is one in which the remedy of declaratory relief is particularly appropriate.   Opportunity has been afforded to both Pressley, the person seeking to recover for personal injuries, and Baker, the insured, to set forth fully the facts as to the nature of the altercation.   From their respective versions only one reasonable inference can be drawn, namely, that Baker intended to cause bodily injury to Pressley and that in his conduct he did not act in self-defense.   Thus, unlike the situation where the facts or the inferences to be drawn therefrom as to the nature of the occurrence are in dispute (cf. Prashker v. United States Guarantee Company, 1 N.Y.2d 584, 590–592, 154 N.Y.S.2d 910, 136 N.E.2d 871, 874–875), in the present case there is no triable issue of fact.   Accordingly, declaratory relief can be afforded in the light of facts which reasonably support only one inference as to the nature of the occurrence.  (Cf. Lincoln Casualty Company v. Vic and Mario's Inc., 62 Ill.App.2d 262, 210 N.E.2d 329.)   The court acted without error in granting the motion for summary judgment and in rendering a judgment affording the relief which the plaintiff sought.

The judgment is affirmed.


1.   Except for the provision as to costs, the judgment was as follows:  “NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:  1. That the bodily injuries sustained by defendant DYSART CARMACK PRESSLEY as the result of an altercation with the defendant JIM LEE BAKER, on or about March 4, 1962, said bodily injuries being the basis for a companion personal injury action, numbered 794,071, entitled ‘Dysart Carmack Pressley v. Jim Lee Baker, et al’, were bodily injuries intentionally caused by defendant JIM LEE BAKER.   2. That plaintiff COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, has no duty or obligation to furnish a defense for defendant JIM LEE BAKER in that certain action entitled ‘Dysart Carmack Pressley v. Jim Lee Baker, et al’, being case No. 794,071, now pending in the Superior Court of the State of California, for the County of Los Angeles.   3. That plaintiff COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, has no duty nor obligation to indemnify JIM LEE BAKER for any loss which said defendant may suffer as the result of a judgment against said defendant in the above mentioned action, being case No. 794,071.”

2.   The summary judgment procedure is applicable to declaratory relief actions.  (Siemon v. Russell, 194 Cal.App.2d 592, 595, 15 Cal.Rptr. 218;  Spencer v. Hibernia Bank, 186 Cal.App.2d 702, 712, 9 Cal.Rptr. 867.)   As stated in Saporta v. Barbagelata, 220 Cal.App.2d 463, at page 468, 33 Cal.Rptr. 661, at page 663:  “The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of trial.   [Citations.]  The object of the proceeding is to discover proof.”   A deposition, of course, serves the same purpose as an affidavit.   (Saporta v. Barbagelata, supra, 220 Cal.App.2d 463, 469, 33 Cal.Rptr. 661.)

3.   In the present case it is not necessary to discuss or determine the duty of the insurer to defend in a case where the pleading of the third person who sues the insured does not disclose a claim within the coverage of the policy but the actual facts as known to or ascertainable by the insurer bring the matter within such coverage.  (See Note 50 A.L.R.2d 458, 497–504;  Campidonica v. Transport Indemnity Co., 217 Cal.App.2d 403, 407–409, 31 Cal.Rptr. 735.)

FORD, Justice.

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