author: MARCUS, Justice. SUMMERS, Justice

text:
    Mrs. Eric (Linda) PARKS v. INSURANCE COMPANY OF NORTH AMERICA et al.
    No. 57797.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      John T. Bennett, Riddle, Bennett & Ry-land, Marksville, for plaintiff-applicant.
    John W. Scott, Stafford, Randow, O’Neal & Scott, Alexandria, Edwin L. Lafargue, Laborde, Lafargue & Kelly, Marksville, for defendants-respondents.
   MARCUS, Justice.

Plaintiff, Mrs. Eric (Linda) Parks, instituted suit for workmen’s compensation benefits against her employer, Marksville Industries, Inc. (hereinafter referred to as Garan, Inc.) and its insurer, Insurance Company of North America, seeking total and permanent disability payments for a condition allegedly resulting from a form of bronchitis caused, aggravated or precipitated by the working conditions at her place of employment. By supplemental petition, plaintiff made New York Life Insurance Company a defendant, alternatively alleging that if she could not recover under the Louisiana Workmen’s Compensation Act, she was entitled to disability payments under a group insurance policy covering the employees at Marksville Industries, Inc. Plaintiff also prayed for penalties and attorney fees against all defendants.

The trial judge rendered judgment in favor of Garan, Inc. and its compensation insurer based on findings that the plaintiff was an unskilled worker, that her illness did not constitute an accident within the contemplation of the compensation law and that the conditions at her place of employment did not cause her illness. Judgment was rendered in favor of plaintiff and against New York Life Insurance Company in the amount of $40.00 per week for the period of plaintiff’s disability, which the court determined to be from October 10, 1973 to November 30,1973. The trial judge denied penalties and attorney fees and assessed costs to New York Life in the amount of $15.00. All other costs were taxed to plaintiff.

From this judgment, plaintiff appealed to the court of appeal whereupon the appeal court affirmed in all respects the findings of fact and conclusions of law reached by the trial court. 326 So.2d 535 (La.App.1976). We granted certiorari to review the correctness of this judgment. 330 So.2d 313 (La.1976).

FACTS

The record reflects that plaintiff, Linda Parks, is a twenty-one year old housewife living in a rural area near Marksville, Louisiana. After brief work experiences in a canning factory and nursing home, plaintiff applied for a position with Marksville Industries, Inc., a division of Garan, Inc., a company manufacturing ready-to-wear garments. Mrs. Parks began working in May, 1973 as a seamstress sewing pockets and yokes onto ladies pants. In the course of her work, plaintiff observed that the process of machine stitching pieces of fabric together generated large quantities of dust and lint which settled atop the sewing machines and on the clothes and bodies of the workers. At the end of each day, plaintiff and her fellow workers used an air vacuum hose provided by Garan, Inc. to remove the accumulated lint from the machines and themselves. The testimony of plaintiff and Mr. Don Fulton, manager of the Garan plant, revealed that, during the period of plaintiff’s employment, the Garan facilities were housed in an old converted nightclub. There were no windows in the building and, although the plant was air conditioned, it was necessary to leave the doors of the building open to promote air circulation.

Mrs. Parks testified that in early September, 1973, after working for Garan for approximately four months, she began to experience a sore throat, running nose, and a nagging dry cough. She related that on blowing her nose, it was obvious to her from the content of the mucus discharged that she had been inhaling fabric lint. Although Mrs. Parks continued to work regularly throughout September, she began losing weight and felt gradually worse, until on October 10,1973, she was stricken with a high fever and forced to consult a local general practitioner, Dr. Bryan C. McCann.

Plaintiff’s medical history discloses that as a child she had several episodes of acute bronchitis and on one occasion suffered from whooping cough. While none of plaintiff’s sisters had been troubled with respiratory ailments, her two brothers had asthma as children. Plaintiff began smoking in April, 1973 and has continued to do so at the rate of about one pack per day without apparent ill effects to her respiratory system. As an adult, plaintiff has apparently had occasional colds and related respiratory symptoms but she testified at trial that since childhood she has not experienced an attack of acute bronchitis such as she suffered in fall of 1973 while working at the Garan plant.

Dr. McCann testified that when he saw plaintiff on October 10, 1973 he found her to have a temperature of 100°. From a description of her symptoms over the last month and a physical examination, he diagnosed Linda Parks’ condition as bronchitis with throat infection. Plaintiff was treated with penicillin. On October 12, 1973, Mrs. Parks returned to Dr. McCann; her condition was unchanged. She was administered a different antibiotic by injection for several days but by October 15 her condition had worsened to the extent that hospitalization was necessary. Plaintiff remained in the hospital for four days and was diagnosed as having chronic bronchitis and an unrelated urinary tract infection. Three days after her discharge from the hospital, on October 22, 1973, plaintiff again consulted Dr. McCann complaining of a hard dry cough and abdominal pain; she was treated with injections over the next four days. Dr. McCann testified that, when he next saw plaintiff on November 2, 1973, she had a fever of 101%A and reported having had this temperature for five days. Dr. McCann referred her to a specialist in internal medicine, Dr. M. L. Godley, who immediately hospitalized plaintiff and treated her for allergic bronchitis. Four days later, plaintiff was again discharged from the hospital only to return once more to her physician, Dr. McCann, on November 15, 1973 with a fever of 101%A, a cough, and congestion. Plaintiff was treated with yet another antibiotic supplemented by gamma globulin injections. Subsequent to this last treatment, Mrs. Parks’ illness disappeared. On advice of both doctors who treated her, plaintiff did not return to work at Garan, Inc. on any occasion after the October 10, 1973 onset of her acute illness.

At trial, Dr. McCann was extensively examined concerning the nature of plaintiff’s illness and its relation to the working conditions at Garan, Inc. He stated that Mrs. Parks’ high fever and the presence of pneu-mococcus bacteria in her sputum indicated that, when she saw him on October 10,1973, she was suffering from an acute infectious bronchitis. He testified that he did not believe plaintiff’s acute episode was related to asthma (even if she did have an asthmatic condition) since he detected none of the characteristic wheezing usually present in an asthmatic attack. Dr. McCann explained that bronchitis is a general term describing an inflammation or infection of the bronchioles. He testified that, in his opinion and after consulting with Dr. God-ley, plaintiff during early September and October had experienced a chronic bronchitis, a persistent condition of bronchial inflammation, caused or aggravated by the working conditions at Garan, Inc., and more particularly by inhalation of dust and fabric lint. Dr. McCann noted that these substances constituted non-specific irritants which caused plaintiff’s lungs to be inflamed and secrete mucus. It was his testimony that this condition made plaintiff physically more susceptible to the bacterial infection which ensued producing her acute illness of October 10, 1973. Dr. McCann related that “the infectious process was an end result of the inflammation or irritation” and that the exposure to lint and fabric dust was an “aggravating factor if not the cause itself” of her bronchitis. Regarding plaintiff’s smoking and other irritants which might have been present in her home environment, Dr. McCann noted that plaintiff’s lack of symptoms prior to working at Garan and the non-recurrence of bronchial difficulties after she terminated her employment, suggested that working conditions triggered plaintiff’s respiratory problems. In response to questioning concerning skin patch testing, Dr. McCann indicated that, even if plaintiff were non-allergic in a technical sense, fabric dust and lint could nevertheless precipitate irritation and inflammation in a person, such as plaintiff, who had hypersensitive bronchial tubes and a predisposition to respiratory problems. He also testified that it was understandable that plaintiff suffered several relapses of her acute illness even without re-exposure to the irritants at Garan in view of her weakened physical condition. Dr. McCann confirmed that he had advised plaintiff against returning to work at Gar-an but he also stated, regarding plaintiff’s disability, that having once recovered from the fall 1973 episode of acute bronchitis, plaintiff’s physical condition returned to its pre-illness state with no residual effects.

Reports written by Dr. Godley, the physician who treated plaintiff during her second period of hospitalization, confirm Dr. McCann’s evaluation of Mrs. Parks’ illness in all material respects. While he stated that the fabric dust and lint at Garan did not cause plaintiff’s a cute illness, he nevertheless agreed that such substances would aggravate her already overreactive bronchial tubes.

In anticipation of this litigation, plaintiff was referred for evaluation to two consulting specialists. The first, Dr. A. C. Dalton, a specialist in allergy and immunology, first saw plaintiff on March 8, 1974, at which time she was asymptomatic. Dr. Dalton performed a series of skin patch tests on plaintiff with various known allergens and with a sample of fabric dust obtained from Garan. Since plaintiff had no specific allergic reaction to any of these substances, he concluded that she was not an allergic individual and agreed with Dr. McCann’s finding that her acute illness in mid-October of 1973 was infectious in nature. Dr. Dalton made it clear that the absence of allergic reaction has no influence on whether or not a substance can operate as a non-specific irritant to the pulmonary system. Like Dr. McCann, he did not think the fabric dust and lint was causative of her acute attack but that the inhalation of these substances could aggravate her underlying pre-disposition toward bronchitis. He specifically stated that her condition was aggravated and the “stage was set” by the dusty atmosphere at Garan, which he felt was “a contributing factor” in her illness.

Dr. Hans Weill, a specialist in pulmonary disease and internal medicine, examined plaintiff for evaluative purposes on April 1, 1974. The doctor found her asymptomatic with only a slight reduction in forced expiratory flow indicating a mild sub-clinical asthmatic condition. Dr. Weill, like the other physicians who examined plaintiff, was of the opinion that her acute symptoms were consistent with a viral or bacterial infection. He conceded that a non-specific irritant such as dust or fumes could produce transitory respiratory symptoms including inflammation and secretion of mucus in an individual with underlying hyperreactive bronchial tendencies. While Dr. Weill’s testimony concerning the nature and causes of plaintiff’s medical problems was less favorable than that of the other physicians, it did not in our opinion directly refute the theory of illness proposed by her treating physician.

RIGHT TO COMPENSATION

In order to recover benefits under the Louisiana Workmen's Compensation Law, an employee must establish that he received a personal injury by accident arising out of and in the course of his employment. Disability is compensable only if it results from a work-related accident. La. R.S. 23:1031; Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Hence, the first issue presented for our consideration is whether or not an accidental injury occurred.

Defendants contend that the acute illness suffered by plaintiff does not fall within the definition of accidental injury as contemplated by the workmen’s compensation law. We do not agree.

The terms “accident” and “injury” for the purpose of the workmen’s compensation statute are defined in La.R.S. 23:1021 as follows:

(1) ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.
(7) ‘Injury’ and ‘Personal Injuries’ includes only injuries by violence to the physical structure of the body and such disease and infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.

We note at the outset that the courts of this state have consistently accorded the terms of the Workmen’s Compensation Act a liberal construction in order to effectuate its beneficent purpose of relieving workmen of the economic burden of work-connected injuries by diffusing the costs in channels of commerce. Danielsen v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609 (1963); Geist v. Martin, Decker Corp., 313 So.2d 1 (La.App. 1st Cir. 1975). Louisiana is among the many jurisdictions that look to the employee to determine whether there was an unexpected and catastrophic effect upon him in deciding that an injury is accidental. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972). We have held that extraordinary physical stress and strain is not essential to the definition of disabling accident: when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1968). More particularly, we have recognized that the fact that a condition may commonly be referred to as an illness or disease does not thereby preclude its classification as an accident. Jennings v. Louisiana Southern Life Insurance Co., 290 So.2d 811 (La.1974). In Jennings, we noted that among other conditions frequently termed as diseases, heart disease, stroke, heat stroke, herpes zoster (shingles), cancer and “bends” have all been treated as compensable accidents within the contemplation of the Workmen’s Compensation Act. We are satisfied, therefore, that the acute illness suffered by plaintiff in the instant case constitutes an “accident” as that term is defined in the compensation act and interpreted in our jurisprudence. The medical testimony is clear that during her episode of acute bronchitis pláintiff suffered an injury, i. e., “violence to the physical structure of her body.” The injury was accidental because it was unexpected and unforeseen and occurred suddenly producing at the time objective symptoms. We are confirmed in our conclusions by the well-reasoned opinions in Geist v. Martin Decker Corp., 313 So.2d 1 (La.App. 1st Cir. 1975) and Gotte v. Cities Service Oil Co., 298 So.2d 920 (La.App. 3d Cir. 1974) wherein hepatitis and pneumonia were both held to be within the statutory definition of accident when the contraction of these conditions was causally related to plaintiffs’ employment.

The next issue for our consideration is whether the acute bronchitis contracted by plaintiff was caused, aggravated or precipitated by the working conditions of her employment. Our jurisprudence demonstrates that it is not necessary that an accident be caused by extraordinary activities of an employee or that said activities be the exclusive cause of an accidental injury. It is only necessary that the accidental injury be caused or precipitated by the usual and customary actions, exertion, or other factors directly connected with the employment. Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975). It is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor. Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969). We have recently held, moreover, that an accident which aggravates or accelerates a pre-existing condition is com-pensable even where disability is not caused by a single or specific incident. Chism v. Kaiser Aluminum & Chemical Corp., 332 So.2d 784 (La.1976).

A careful examination of the record convinces us that the aggravation of plaintiff’s predisposition toward respiratory difficulties and her contraction of acute bronchitis was contributed to or precipitated by the working conditions at her place of employment. Accordingly, we find that plaintiff has demonstrated an accidental injury arising out of and in the course of her employment.

We cannot agree, however, that plaintiff is totally and permanently disabled. The pertinent question to be answered in the resolution of this issue is whether or not the accident has changed plaintiffs condition so as to render her unfit for her former employment. Bertrand v. Coal Operators Casualty Co., supra. Plaintiff argues that, inasmuch as her physician has advised her not to return to work at Garan, Inc. or any other similar employment, she is totally and permanently disabled. It is true that a worker is ordinarily deemed totally and permanently disabled whenever he is unable to perform work of the same or similar description to that which he performed before the accident. La.R.S. 23:1221(2); Futrell v. Hartford Acc. & Indem. Co., 276 So.2d 271 (La.1973). This general rule, however, operates only when it is proven that the alleged disability is causally connected to a work-related accident. We have held that total and permanent disability benefits may be payable when a plaintiff has fully recovered from such an accident, only if a residual condition resulting from the accidental injury substantially increases the possibility of recurrence of a disabling episode. Bertrand v. Coal Operators Casualty Co., supra.

In the instant case, the medical testimony as well as that of plaintiff herself indicates that she has fully recovered from her acute illness and that she now enjoys a state of health comparable to that which existed prior to October 10, 1973. While it is obvious that plaintiff was temporarily totally disabled from that date until her acute illness terminated, she has now been returned to her pre-illness condition and there is no evidence that the acute bronchitis attack left any residual effects whatsoever. The inadvisability of plaintiff’s working in a garment factory is no greater now than it was when she commenced working for Gar-an in May, 1973. We are of the opinion that where, as here, plaintiff fails to demonstrate that her physical condition after an acute illness is altered in any respect, she cannot recover total and permanent disability payments. In short, plaintiff’s disability to work in a garment factory is not related to the accident which she sustained. We note that a similar resolution of this issue was reached in Anderson v. Jefferson Mechanical Contractors, Inc., 301 So.2d 420 (La.App. 4th Cir. 1974), wherein the appeal court held that total and permanent disability benefits were not warranted where an accident admittedly aggravated a congenitally weak back, but where evidence suggested that continuing medical problems after recovery were related to the inherent congenital condition rather than the accident sustained.

Accordingly, we reverse the judgment of the court of appeal which affirmed the trial judge’s decision that plaintiff’s acute bronchitis was not an accident compensable under the Louisiana Workmen’s Compensation Act. The record amply supports, however, a finding that plaintiff was temporarily totally disabled on October 10, 1973 and for a period extending seven weeks thereafter. Plaintiff is therefore entitled to receive the stipulated amount of $51.35 per week for that period. She is additionally entitled to recover medical expenses incurred in the treatment of her acute illness in the following amounts: $426.00 for treatment received at Marksville General Hospital; $506.40 for treatment received at St. Francis Cabrini Hospital; $125.00 for medical services of Dr. Bryan McCann, representing the adjusted fee after deduction for treatment of unrelated urinary tract infection; $72.00 for medical services received at Fireside Clinic.

We reject plaintiff’s prayer for penalties and attorney fees. There is no evidence in the record to support a finding that Garan, Inc. and its compensation carrier were arbitrary or capricious in their refusal to pay compensation benefits.

DECREE

For the reasons assigned, the judgment of the court of appeal in favor of Garan, Inc. and its compensation carrier, Insurance Company of North America, is reversed and set aside and judgment is rendered herein in favor of Mrs. Eric (Linda) Parks and against Garan, Inc. and Insurance Company of North America, jointly and in solido, for the full sum and compensation of $51.35 per week beginning October 10, 1973 and extending for a period of seven weeks thereafter with legal interest on each of the weekly installments from its maturity until paid and medical expenses in the sum of $1,129.40, together with legal interest thereon from date of judicial demand until paid, and all costs of these proceedings, including expert fees as fixed by the trial court. In all other respects, the judgment of the court of appeal is affirmed.

SUMMERS, Justice

(dissenting).

I cannot agree that the trial court and Court of Appeal should be reversed on this purely factual issue.

      . New York Life Insurance Company answered plaintiffs appeal to the court of appeal. Subsequent to judgment affirming the trial court’s decision, however, New York Life Insurance Company did not apply for writs to this court. Hence, the judgment against it has now become final.

      . These reports were admitted in evidence on stipulation of counsel.

      . Depositions of these physicians were admitted on stipulation of counsel.


source: Caselaw Access Project

author: DIXON, Justice. PER CURIAM.

license: Public Domain

text:
    John H. WHITE, d/b/a White Construction & Equipment Rental Company v. RIMMER & GARRETT, INC.
    No. 57968.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.

      Karl E. Boellert, Camp, Carmouche, Palmer, Carwile & Barsh, Lake Charles, for plaintiff-applicant.
    Noble M. Chambers, Jr., Aaron, Aaron & Chambers, Crowley, for defendant-respondent.
   DIXON, Justice.

White Construction & Equipment Rental Company (hereinafter called White) entered into a subcontract with Rimmer & Garrett, Inc. (hereinafter called R & G). Prior to entering this agreement, R & G, as the successful bidder, entered into a public contract with the Louisiana Department of Highways for the construction of a portion of the 1-210 bypass in Lake Charles, Louisiana. The work sectioned out by the subcontract to White was that portion of the primary contract designated as Item 203(5) which entailed excavation from a designated area and delivery of the dirt to the site of the highway construction in addition to other duties not relevant here. The approximate quantity expected to be moved was 1,738,540 cubic yards. The original subcontract provided in Article 2:

“The Subcontractor shall furnish all labor, materials and equipment and shall perform all the Work for
ITEM # DESCRIPTION UNIT QUANTITY UNIT PRICE AMOUNT
203(5) Special Borrow Excav. CY 1,000,000 ).90 $900,000.00
203(5) Special Borrow Excav. CY 1,100,000 .895 $984,500.00
203(5) Special Borrow Excav. CY 1,200,000 .89 $1,068,000.00
203(5) Special Borrow Excav. CY 1,300,000 .885 $1,150,500.00
203(5) Special Borrow Excav. CY 1,400,000 .88 $1,232,000.00
203(5) Special Borrow Excav. CY 1,500,000 .875 $1,312,500.00
203(5) Special Borrow Excav. CY 1,600,000 .87 $1,392,000.00”

Within five days of the confection of this agreement the parties signed a supplement (hereinafter referred to as Supplement I). This supplement specified that White was only to load, haul and spot-dump on the project although Item 203(5) contained other minor provisions. The supplement also provided that any special borrow located north of Interstate 10 was not to be included within the terms of the agreement. Most pertinent to this opinion, however, was the addendum to Article 2 which stated: “The minimum special borrow quantity will be 1,000,000 cubic yards.”

R & G purchased the land on which the excavation was to be performed and work began in the fall of 1971. Work progressed until the spring of 1972 when disagreements arose over the area to be excavated. R & G had decided to convert the borrow pit being excavated into lakes and to develop a subdivision around them. White initially objected to the altered configuration. White then submitted thirteen demands to R & G and out of this conflict a second supplement (hereinafter referred to as Supplement II) dated April 10, 1972 was added to the contract. This second supplement, among other things, set out the parties’ agreement with respect to the shape of the pit. In addition, the rate of compensation to White for his excavation work was changed from a sliding scale to a flat $.915 per cubic yard. This provision was followed by a handwritten provision initialed by the parties which appears as the italicized portion of the provision quoted below:

“2. Rimmer & Garrett, Inc. agrees to pay White Construction at a flat rate of $.915 per yard for all material removed or to be removed including material removed to date hereof. One Million Cu. Yd. Guaranteed.”

Work again commenced but difficulties arose and the instant suit was filed on March 19,1973 by White wherein he sought specific performance, accounting and, alternatively, damages. R & G reconvened alleging failure of White to abide by the conditions of the contract. White had only hauled 985,650 cubic yards by the time difficulties arose and White ceased work. White was claiming that he. had the right to haul all the dirt needed for Item 203(5) with the exception of the area north of I — 10 and a “scraper” item which was to be excavated by R & G. The trial court denied R & G’s reconventional demand and White’s claim for damages for R & G’s alleged acts of contract interference. The trial court held that White was entitled to $.915 per cubic yard for the difference between what White actually hauled (985,650) and one million cubic yards. However, the district judge did not dispose of White’s contention that R & G had usurped White’s exclusive right to haul all the dirt needed for Item 203(5) and that White was entitled to an accounting. The Court of Appeal held, among other things, that parol evidence was admissible to prove the true intent of the parties relative to White’s right to do all the work for Item 203(5) and, after considering the evidence, held that White was only entitled to haul one million cubic yards of dirt. The trial court awarded White his lost profit on the dirt he was precluded from taking assessed on the difference between the amount actually hauled and one million cubic yards. We granted writs to White to review the Court of Appeal’s construction of the contract and its method of assessing damages.

Generally parol evidence may not be admitted “against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.” C.C. 2276. In addition, the code provides that in construing a contract “the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.” C.C. 1945(3). Furthermore, “when there is doubt as to the true sense of the words of a contract, they may be explained by referring to other words or phrases used in making the same contract.” C.C. 1948. However, it is also provided that “when the intent of the parties is doubtful, the construction put upon it, by the manner in which it has been executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation. C.C. 1956. Thus, unless the true intent of the parties can not be ascertained by an analysis of the contract provisions because these terms are ambiguous, parol evidence is not admissible. To hold otherwise and allow parol to explain that an unambiguous phrase means something other than its clear meaning would allow parol “against or beyond” what is contained in the contract.

As the Court of Appeal pointed out, the original contract is unambiguous and clearly provides that White has the right and duty to haul all of the dirt required for the completion of Item 203(5). The Court of Appeal also correctly held that Supplement I does not create any inconsistency but is compatible with the original contract’s provision that White had the right and duty to provide all of the dirt required by 203(5). The word “minimum” does not mean “maximum,” as respondent argues. The insertion of this clause in Supplement I did not modify White’s responsibilities with respect to performing “all the work” but was merely an assurance given the subcontractor that the “special borrow quantity” White was entitled to haul would not be reduced below one million cubic yards by the dirt R & G was entitled to haul.

The Court of Appeal, however, concluded that the insertion of the words “One Million Cu. Yd. Guaranteed” in Supplement II injected some ambiguity with respect to White’s right to do “all the work” required for Item 203(5). An analysis of Supplement II and the other contractual provisions in context reveals that the purpose of the handwritten clause was to make clear that Supplement II did not modify White’s right established in Supplement I to be protected against a reduction in the quantity of dirt to be moved under Item 203(5) to less than one million cubic yards. Thus, the original contract and its supplements are consistent, and parol evidence was not admissible to vary the terms of the contract.

Therefore, White is entitled to recover damages for R & G’s usurpation of White’s exclusive right, with some exceptions, to provide all the dirt required for Item 203(5). The Court of Appeal correctly held that the proper assessment of damages is the amount of the loss sustained and the profit of which White has been deprived. C.C. 1934. Lost profit is determined by deducting the cost of labor and materials from the total contract price. However, it was error for the Court of Appeal to assess White’s lost profit on the proportionate basis of his net income experience on the job, for such a figure also includes expenses which are fixed and not variable with the amount of dirt actually hauled by White. The proper deductions only include those expenses, such as fuel, oil, truckers’ salaries, etc., which would have been incurred had White completed the job. Since the parties did not present sufficient evidence for this court to review on this point, we must remand the case to the trial court for a limited introduction of evidence relative to this point.

We are compelled to remand on another point as well. The proper formula for determining the amount of cubic yards on which to assess the damages is: the amount of dirt actually used for Item 203(5) less (1) the dirt White actually hauled and was paid for (985,650); (2) the 86,000 cubic yards of fill hauled by R & G north of I — 10 and (3) the amount R & G was responsible for as the “scraper” item. Since the Court of Appeal opinion and relator’s brief conflict as to the total amount of dirt used on 203(5) and on the amount of the “scraper” item, we must remand to the district court to ascertain these figures.

Accordingly, the judgment of the Court of Appeal is reversed insofar as it denies White damages in excess of one million cubic yards and insofar as it incorrectly assessed damages, at the cost of respondent; the case is remanded to the district court for further proceedings in accordance with this opinion.

ON REHEARING

PER CURIAM.

In its application for a rehearing Rimmer & Garrett, ■ Inc. asserted that for the purposes of trial the parties had agreed to use the yardage estimates of the Louisiana Department of Highways. In good faith both sides believed that any variations in these estimates from the final calculations would be insignificant. However, in February, 1976, Rimmer & Garrett, Inc. was advised by the Department of Highways of the final figures for the yardage actually used in Project Item 203(5). It is claimed that these figures reveal that the cubic yards of fill hauled north of I — 10 vary substantially from the figure of 86,000 cubic yards we utilized in our opinion. In our original opinion we stated that the case is remanded to ascertain the total amount of dirt used on Item 203(5) and the amount of the “scraper” item. In order to avoid any injustice to either party, on remand the court will not be bound by any figures mentioned in the opinion. Thus, on remand, the parties may introduce evidence to determine the figures in the formula for determining the amount of cubic yards on which to assess the damages: the amount of dirt actually used for Item 203(5) less (1) the dirt White actually hauled and was paid for; (2) the cubic yards of fill hauled by Rimmer & Garrett, Inc. north of I — 10 and (3) the amount Rimmer & Garrett, Inc. was responsible for as the “scraper” item. In all other respects the original opinion is correct.

      . The amounts of dirt R & G was entitled to haul consist of (1) the fill north of I — 10 established by Supplement I and (2) a “scraper” item dealing with R & G’s duty to dig a bleeder ditch and which was agreed to orally.

      . See footnote 1.


text:
    Ruth Woodard MITCHELL v. D. L. BERTOLLA.
    No. 57971.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 20, 1976.

      Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, Hal R. Henderson, Arcadia, for plaintiff-applicant.
    John M. Stewart, Arcadia, for defendant-respondent.
   DIXON, Justice.

This is a suit to cancel an option to purchase contained in a lease agreement. The trial judge sustained an exception of lis pendens. Upon plaintiff’s appeal, the Court of Appeal sustained an exception of no cause of action because of a previous final judgment ordering specific performance under the same option agreement the cancellation of which is sought here. Mitchell v. Bertolla, 328 So.2d 380 (La.App. 2d Cir. 1976).

We granted writs to examine the res judicata issue, which the Court of Appeal had avoided by holding that the prior judgment had rendered the case “moot.”

Facts

On May 13, 1971 Mrs. Ruth Mitchell granted a lease to D. L. Bertolla affecting two tracts of land (said to total 541 acres) in Bienville Parish. The lease was for a three year term and provided for a monthly rental of $75.00. The agreement concluded with an option to the lessee to purchase either tract, or both, for $55,000 for the larger and $25,000 for the smaller, at any time during the lease. On January 18,1972 Mr. Bertolla notified Mrs. Mitchell that he intended to exercise his option to purchase the smaller of the two tracts. On January 21,1972 Mrs. Mitchell filed suit No. 20800 in the Second Judicial District Court, Parish of Bienville, seeking cancellation of the agreement for nonpayment of rentals due on December 15, 1971 and January 15, 1972. Bertolla answered alleging payment of the rentals. Bertolla then filed suit No. 20825 against Mrs. Mitchell seeking specific performance of the option to purchase the two tracts of land for a total price of $80,000. In answer to suit No. 20825 Mrs. Mitchell contended that the agreement had terminated because of Bertolla’s nonpayment of rent and, alternatively, by reconventional demand, that the option was invalid because of lesion beyond moiety. The suits were consolidated for trial and on September 14,1973 judgment was rendered for Mr. Bertolla and Mrs. Mitchell was ordered to specifically perform the contract. On September 28, 1973 Mrs. Mitchell filed a sus-pensive and devolutive appeal. On May 6, 1974, while the appeals were still pending in the Court of Appeal, Mrs. Mitchell filed the instant suit to cancel the lease and option to purchase on the grounds of fraud, lack of consideration and other grounds. Bertolla filed an exception of lis pendens, an answer and reconventional demand. The exception of lis pendens was tried and submitted on June 14, 1974. On September 4, 1974 the Second Circuit Court of Appeal affirmed the judgment of the district court in the two original suits. Mitchell v. Bertolla, 300 So.2d 209. Those judgments became final on November 22, 1974 when this court denied writs. Mitchell v. Bertolla, 303 So.2d 179. On January 17, 1975 the trial court sustained the exception of lis pendens in the present suit. Mrs. Mitchell appealed that ruling to the Second Circuit Court of Appeal, and, prior to oral argument in the Court of Appeal, the defendant, Bertolla, filed a plea of judicial estoppel, exceptions of res judicata and no cause of action based on the prior final judgment.

Estoppel

It should be noted in the beginning of the discussion of the plea of judicial estoppel that we do not reach, in this case, the question of whether such a doctrine continues to be available in Louisiana. We find that there would be no merit in the plea under the jurisprudence of the common law jurisdictions which have developed the doctrine of collateral estoppel as a device for “issue preclusion.” Under the existing body of Louisiana jurisprudence, considered as a whole, it might be that collateral estop-pel is either (1) not needed (except in rare and perhaps isolated cases); or (2) not compatible with the “civilian” concept of res judicata. In a case in which the result would differ, depending on whether collateral estoppel or the “civilian” doctrine of res judicata controls, the collateral estoppel doctrine might or might not survive in Louisiana. To date, however, the doctrine has been recognized.

California Co. v. Price, 234 La. 338, 99 So.2d 743 (1957), “adopted common law estoppel as one of the bases for its decision . . . ” Maloney, Preclusion Devices in Louisiana: Collateral Estoppel, XXXV La.L.Rev. 158, 167 (1974). Other Louisiana cases have recognized the doctrine. Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954); Buillard v. Davis, 185 La. 255,169 So. 78 (1936); Heroman v. La. Inst. of Deaf & Dumb, 34 La.Ann. 805 (1882). The term “judicial estoppel” was used in Quarles v. Lewis and California Co. v. Price. Actually, “judicial estoppel” is more nearly related to our “judicial confession” of C.C. 2291. The common law doctrine of “collateral estoppel” precludes relitigation of material facts previously litigated and relied upon by the court. See XXXV La.L.Rev. 158, 167, footnote 52. Collateral estoppel is a doctrine of issue preclusion and “is the effect of a prior judgment in a subsequent suit between the parties brought on a dif ferent cause of action.” XXXV La.L.Rev. 158, 159. The prior judgment is a bar to the relitigation of issues raised, litigated and decided in that prior suit.

The unfortunate and difficult problem in Louisiana is the different meaning and connotation which the common law and the civil law would attach to the same words used in the Civil Code. Unless we develop an issue preclusion doctrine like collateral estoppel, but peculiar to Louisiana, we must work within the framework of the common law. Since, at common law, collateral es-toppel is available only when the causes of action in the two suits are different, we must define “cause of action” in common law terms.

The introduction to the chapter on “Identity of Cause of Action” in Freeman’s A Treatise of the Law of Judgments (1925), begins:

“There is no precise rule for determining what constitutes an entire cause of action since this depends to a considerable extent upon the particular facts of the case. . ” Freeman, Law of Judgments, § 678, 1433.

Specifically, however, it is clear that only a single cause of action exists when the effort in the litigation is to have a deed or contract set aside:

“Thus where a right to have a deed or a contract set aside is claimed, there is but a single cause of action though several grounds such as fraud, undue influence, and mental incapacity may be rélied upon. Though the attack is based upon fraud, a denial of relief bars a subsequent attack for indefiniteness in the description. . . . ” Freeman, Law of Judgments, § 681, 1438.

The American Law Institute restatement of the common law rules is the same. Restatement of the Law of Judgments, § 63, Comment d (1942).

In the case before us, Mrs. Mitchell asserts fraud, misrepresentation and other grounds for the nullity of the option to purchase. In the prior suits the grounds asserted for the nullity of the option were nonpayment of rent and lesion beyond moiety.

An analysis of the two suits in common law terms, to determine whether a common law doctrine of estoppel prevents this suit, is that both the earlier and later suits are on the same “cause of action,” although based on different “grounds.”

For this reason, the plea of “judicial es-toppel” is not available, and is overruled.

Res Judicata

Since Hope v. Madison, 194 La. 337, 193 So. 666 (1940), it has been necessary to distinguish, in res judicata cases, whether it is the common law or civilian doctrine under consideration. Prior to 1940, the jurisprudence in Louisiana was in excusable confusion, since the jurisprudence of myriad common law jurisdictions was more available to the Louisiana lawyer than were French doctrinal writings. O’Quin’s Res Judicata—“Matters Which Might Have Been Pleaded,” II La.L.Rev. 347 and 491, was the first of several thorough examinations of the res judicata problem in Louisiana. The writers agree that it is the civilian doctrine, and not the common law doctrine of res judicata established in Louisiana by C.C. 2286. Loehn, Res Judicata: Cause vs. Common Law, 22 Loyola L.Rev. 221 (1976); Maloney, Preclusion Devices in Louisiana: Collateral Estoppel, XXXV La. L.Rev. 158 (1974); Arbour, The Louisiana Concept of Res Judicata, XXXIV La.L.Rev. 763 (1974); Tate, Procedure, XXIX La.L. Rev. 269, 278 (1969). See also Kerameus, Res Judicata: A Foreign Lawyer’s Impression of Some Louisiana Problems, XXXV La.L.Rev. 1151 (1975). Recent cases of this court represent a uniform effort to rely upon civilian interpretation in applying C.C. 2286. Sliman v. McBee, 311 So.2d 248 (La. 1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974); New Orleans Firefighters v. City of New Orleans, 263 La. 649, 269 So.2d 194 (1972).

It is true that some decisions of this court since 1940 seem moré compatible with the common law doctrine of preclusion than with the civilian. One such case relied on by defendant here is Succn. of Reynolds, 231 La. 410, 91 So.2d 584 (1956). There it was held that a will, unsuccessfully attacked in prior suits because of a date uncertain and false, could not again be attacked upon the new allegation that the reason for the false date was the absence of the testatrix from the state while the will was locked in a safe in the state on the date fixed by the court. The Reynolds case is of no help to defendant. Although the court did not so analyze it, it can be said that the cause was the same in each suit — the invalidity of the will for a vice of form. Only the evidence alleged to support the claim was different in the last suit. Contra, XVII La.L.Rev. 849.

As with the well established exceptions recognized in Hope v. Madison, supra, there will be areas in Louisiana jurisprudence in which the application of French doctrine, as we perceive it, might result in a conclusion different from that reached by this court in balancing the competing interests. See Fulmer v. Fulmer, 301 So.2d 622 (La.1974) —relitigation of fault in divorce action; McKnight v. State, 68 So.2d 652 (La.App. 1st Cir. 1953); XIV La.L.Rev. 901 — master-servant liability. Such cases can not be interpreted as evidence of a return to common law preclusion devices, and can not be understood as withdrawing from the position of Hope v. Madison, supra. The res judicata of C.C. 2286 is not the res judicata of the common law.

Cause or Cause of Action?

C.C. 2286 provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

Article 1351 of the Code Napoleon of 1804 is the same as the French in our C.C. 1808, p. 315, Art. 252: “il faut que la chose de-mandée soit la méme . . ” Our C.C. 1808, p. 314, Art. 252, English version, translates that phrase correctly: “The thing demanded must be the same . .” Then follows a phrase which has no counterpart in the French text: “the demand must be founded on the same cause . . ” This clause then appears in the French version of Art. 2265 of C.C. 1825 as: “que la demande soit fondée sur le méme cause .” But in the English version of Art. 2265 of C.C. 1825, the clause is exactly like that in Art. 2286 of C.C. 1870: “the demand must be founded on the same cause of action.” Dainow, Compiled Edition of the Civil Codes of Louisiana (1972).

It is generally accepted that “cause of action” is a mistranslation. Procedure, XXIX La.L.Rev. 269, 282, footnote 65; Sli-man v. McBee, supra, footnotes 11 and 12. Although the difference is often noted, it has not before now been necessary to decide whether the phrase “cause of action” means the same as at common law. As previously noted, plaintiffs earlier suits to set aside the option and the present suit to set it aside, although brought on different “grounds,” constitute the same cause of action.

The cause is said to be the juridical or material fact which is the basis of the right claimed, or the defense pleaded. 2 Planiol, Traite Elementaire De Droit Civil, 34 (11 ed. 1939). Stated otherwise:

“. . . Cause is the principle upon which a specific demand is grounded while cause of action embraces the cause and the demand, and is related to the party making the demand. . . . ” Maloney, Preclusion Devices in Louisiana: Collateral Estoppel, supra, at 165, footnote 41.

Cause in Louisiana may be likened to the “grounds” described by Freeman:

“. . . There is an obvious distinction between grounds of action and cause of action; a single cause of action may be based upon several grounds, in which event, whether actually litigated or not, they are all merged in the judgment which bars a new action on the same cause of action on a different ground. Freeman, Law of Judgments, § 681, 1437-38.

Plaintiff’s earlier suit sought to nullify the contract for nonpayment of rent and for lesion beyond moiety. Those were the juridical facts upon which she based her claim, and with which she defended the suit for specific performance. Each was a “cause” of the earlier suit. The cause of the instant suit is fraud, lack of consideration, and others.

We hold that the words “cause of action” in C.C. 2286 are to be interpreted to mean “cause,” and we will look to civilian doctrine, if need be, to explain the meaning of “cause.”

O’Quin described the prevailing view of cause in actions to nullify an instrument:

“. . . each of the vices is a separate cause, and therefore failure of the plaintiff in an attack on the ground of fraud will not bar a subsequent attack on the grounds of error or duress, or any other vice. This view has been adopted by practically all the modern commentators.” II La.L.Rev. 347, 358.

Hope v. Madison, supra, in addition to its importance in deciding against following common law theories of res judicata, is similar in its relevant facts to the case before us. Mrs. Hope sued her lawyer to have a sale nullified for fraud, lack of consideration and misrepresentation. She lost, then brought another action to set aside the contract as a sale of a litigious right.

The court held there was no identity of cause, and the plea of res judicata was denied. There is no identity of cause in the instant suit, and the plea of res judicata should be overruled.

Lis Pendens

The trial court was in error in sustaining the defendant’s exception of lis pendens. Although the exception of lis pendens in this suit was argued while the prior suits were still pending on appeal, the judgment in the prior suits became final when this court denied writs on November 22, 1974. Mitchell v. Bertolla, 303 So.2d 179. On January 17, 1975, two months after that judgment was final, the trial court sustained the exception of lis pendens. C.C.P. 531 sets out the requisites to support a successful plea of lis pendens:

When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except; the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.” (Emphasis added).

The action of the trial court was erroneous because at the time of its ruling there were not “two or more suits pending.” In fact, only the instant suit was pending.

Accordingly, the judgments of the Court of Appeal and the trial court are reversed and the case is remanded for further proceedings not inconsistent with this opinion. Taxing costs of these proceedings is to await the conclusion of the case.

PER CURIAM.

In his application for rehearing, the defendant correctly notes that we did not specifically treat his exception of no cause of action. The exception was based upon dual grounds: that the case is moot and that plaintiff had knowledge of the present grounds for cancellation at the time of the prior suits but failed to urge them.

We found no merit in either of these grounds. The case is not moot because the option is presently enforceable, absent the termination of this litigation in plaintiff’s favor.

The argument that plaintiff failed to urge the present grounds in the former suits is in essence an erroneous theory of res judicata, rejected in our treatment of the res judicata issue.

The application for rehearing is denied.


author: DIXON, Justice. DENNIS, J., TATE, Justice

text:
    Kenneth W. HUGHES v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.
    No. 58018.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Donald M. Fendlason, James S. Farmer, Bogalusa, for plaintiff-applicant.
    R. Bradley Lewis, Talley, Anthony, Hughes & Knight, Bogalusa, for defendants-respondents.
   DIXON, Justice.

Kenneth W. Hughes sued to recover property damage sustained when his automobile was rearended by Green Andrews’ Chevrolet, driven by Jimmie Coleman. Southeastern Fidelity Insurance Company was the insurer of the Andrews Chevrolet.

On the day of the accident Green Andrews borrowed Tom Cates’ truck in order to go fishing and left his car for the use of Cates. Later that day, while Andrews still had Cates’ truck, Cates borrowed Andrews’ car. This swapping of vehicles had occurred often and was a common practice between the two men. Neither asked permission of the other. In Andrews’ car, Cates and a friend, Jimmie Coleman, visited some bars in the area. Subsequently, Cates permitted Coleman to drive Andrews’ car while he and Viola Williams occupied the back seat. While Coleman was driving he ran into the back of the plaintiff’s car, disabled on the shoulder of U. S. Highway 90 in St. Charles Parish. The record reveals that Coleman was intoxicated at the time of the accident and that Cates had also been drinking. The plaintiff sued Southeastern Fidelity Insurance Company, Jimmie Coleman and Albert D. Andrews. The trial court rendered judgment for the plaintiff and against the defendant Southeastern Fidelity Insurance Company. The First Circuit Court of Appeal reversed and rendered judgment in favor of the defendant insurance company. Hughes v. Southeastern Fidelity Insurance Co. et al, 329 So.2d 836 (1976). This court granted writs on June 4, 1976 to review the judgment of the Court of Appeal.

The legislature has indicated a strong policy that insurance contracts in Louisiana are executed for the benefit of the injured party and are to provide coverage for all insureds. R.S. 22:655 provides in pertinent part:

“It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.” (Emphasis added).

The specific question to be resolved in this case is whether the omnibus clause of the insurance policy issued in the name of Albert Andrews provided coverage for Jimmie Coleman in the circumstances. The omnibus clause of the policy provides in pertinent part:

“HI. Definition of Insured. With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while operating the automobile and any other person or organization legally responsible for the operation thereof, provided the actual operation of the automobile is by the named insured or such spouse or with the permission of either. . ..

Defendant insurance company admits for the purpose of this litigation that Green Andrews is the named insured under the policy. However, it asserts that Jimmie Coleman was driving the car without the permission of the named insured, was therefore not an insured under the omnibus clause, and hence denies liability. There is no question, and Southeastern does not contend otherwise, that Tom Cates, the first permittee, was covered by the omnibus clause of the policy. The trial court obviously found that Coleman also had implied permission to drive Andrews’ automobile.

In American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969), this court analyzed the question of implied permission for the second permittee (Coleman) in terms of whether it was foreseeable that the first permittee (Cates) would allow someone else to drive when the named insured (Andrews) give his permission to the first permittee. In addition, “each case must depend upon the facts and circumstances revealed there.” American Home Assurance Co. v. Czarniecki, supra; Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734 (1961).

In utilizing this approach, the facts of the relationship between Andrews and Cates were as follows: the two men had known each other for at least ten years and had worked together for over two years. They often swapped vehicles for running errands or other purposes when Andrews needed a truck or Cates needed a car. Andrews’ testimony reveals that no restrictions whatsoever were placed on either man when they borrowed the other’s vehicle and Andrews had never told Cates not to allow a third person to drive the car. On this particular occasion the only reason that Cates had Andrews’ car was that Andrews was using Cates’ truck to go fishing and had left his car for Cates’ use. Andrews did not even know when Cates took his car or when he would bring it back. On the basis of these facts we must agree with the opinion of the dissenting judge in the Court of Appeal:

“. . Under these circumstances, the conclusion is inescapable that he (Andrews) gave Cates his car to use as his own, for his own purpose, while he used Cates’ truck for his own purpose.” (Emphasis added). 329 So.2d 836, at 839.

Since Andrews had given permission to Cates to use the car as his own, the possibility that Cates might allow another to drive the car was clearly foreseeable. See Hurdle v. State Farm Mutual Automobile Insurance Co., 135 So.2d 63 (La.App. 2d Cir. 1961).

Also, the fact of the presence of the first permittee in the vehicle has been considered in similar cases in extending coverage to the second permittee. E. g., Brooks v. Delta Fire & Casualty Co., 82 So.2d 55 (La.App. 1st Cir. 1955); cf. Jones v. Breaux, 289 So.2d 110 (La.1974) (injured party seeking recovery from lessor’s insurance company when permittee of lessee is driving the car). Here, Cates, who clearly had permission, was in the car at the time of the accident.

The Court of Appeal relied heavily on the Czarniecki case, supra, which denied coverage to a second permittee in a similar situation. That case is distinguishable, however, for in Czarniecki the named insured had never loaned his car to the first permittee before, no exchange of vehicles took place and the first perniittee was not in the car during the use by the second permittee. To the contrary, in the case before us, exchanges took place frequently, and Cates was in the car while Coleman was driving.

Similarly, the case of Johnson v. Aetna Casualty & Surety Co., 274 So.2d 769 (La. App.3d Cir. 1973), is distinguishable. Also a second permittee case, the Court of Appeal found no implied permission although the first permittee was in the vehicle at the time of the accident. However, there, the named insured (Philip Morris, Inc.) had given the first permittee (its employee) notice of the restriction on the use of his car including the following language: “However, the privilege to drive for personal use is restricted to you and your wife.” The court found the use to have been personal rather than for business purposes and the second permittee was not the wife of the first permittee. Consequently, in Johnson the foreseeability test had not been met. Here, Andrews placed no restrictions whatever on the use of the car by Cates.

Accordingly, the judgment of the Court of Appeal is reversed, and the judgment of the trial court is reinstated, at defendant’s cost.

TATE, J., assigns additional concurring reasons.

DENNIS, J.,

dissents.

There was not sufficient proof of implied consent for first permittee to allow drunken driver to operate the vehicle.

TATE, Justice

(concurring).

I fully subscribe to the rationale and holding of the majority opinion, accepting (for the time) our decisions in American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969) and Rogillio v. Cazedessus, 241 La. 186, 127 So.2d 734 (1961). In substance, these decisions held that, when the insured permits a third person to drive an insured vehicle, the omnibus coverage also extends to operation of the vehicle by a second permittee only if the scope of the permission given to the first permittee includes permission to him to entrust the vehicle to the operation of the second permittee under the facts and circumstances shown.

Nevertheless, I believe that the omnibus insuring clause should be interpreted more broadly, in accord with our pre-Rogillio jurisprudence. We should re-examine the correctness of the limitation by Czarniecki and Rogillio of omnibus coverage only to those second permittees who, after the accident, are discovered to have been within the scope of the original permission.

The omnibus insuring clause insures “any person while operating the [insured] automobile . . ., provided the actual operation of the automobile is with the permission of [the named insured or his spouse].” If the initial permission is so given by the named insured, the actual operation of the automobile is with his permission, whether by the first permittee or instead by a second permittee to whom the first permittee entrusted the use of the vehicle.

Since Parks v. Hall, 189 La. 849, 181 So. 191 (1938), we have liberally construed the “permission” to the first permittee so as to afford coverage under the omnibus clause even when this permittee operates the vehicle in deviation from or contrary to the instructions given him by the insured. Dominguez v. American Casualty Co., 217 La. 487, 46 So.2d 744 (1950); Waits v. Indemnity Ins. Co. of North America, 215 La. 349, 40 So.2d 746 (1949); Stanley v. Cryer, 213 La. 980, 36 So.2d 9 (1948). Prior to our decision in Rogillio, this well-settled and still-valid jurisprudence was reasonably interpreted by our intermediate courts to likewise import the initial permission to a second permittee, for then the actual operation of the vehicle by a third person was “with the [initial] permission” of the named insured. See, e. g., Brooks v. Delta Fire and Casualty Company, 82 So.2d 55 (La. App. 1st Cir. 1955), certiorari denied.

In my opinion, this court in Rogillio incorrectly and unwisely limited this “initial permission” doctrine so as to require some showing of express or implied permission to the first permittee to let the vehicle be also operated by a second permittee.

In the context of 1976 automobile use, the initial permission ordinarily does not involve discussion, at its time, limiting operation to only the first permittee under any and all circumstances. After-the-accident reconstruction of the terms of the initial permission should not deprive of the protection of the policy a person injured by the vehicle or one operating it with the consent of a first permittee empowered with the apparent authority (through its owner-permitted custody) to entrust its operation to this second permittee.

Our direct action statute expressly declares our state’s public policy that liability insurance is issued for the protection of an injured person and of additional insureds under the omnibus clause, as well as for the protection of the named insured. La.R.S. 22:655. Accepted principles of construction of insurance policies require interpretations in favor of coverage by those reasonably entitled to it; the insurer itself drafts the language susceptible to the interpretation of coverage, and therefore it can likewise restrict such coverage by express policy provisions to such effect.

Accordingly, in my view, Rogillio and Czarniecki were in error in limiting the omnibus coverage to a second permittee to circumstances where, after the incident, it is proved the second permittee’s use was foreseeable by the named insured at the time he gave initial permission for operation of the vehicle by a third person. In terms of the omnibus clause, the “actual operation” of the insured vehicle is “with the permission” of the named insured when he has consented to its use by another and has thus entrusted its custody to another, with the consequent apparent authority (so far as the second permittee is concerned) for that first permittee to permit yet others to drive the vehicle. The initial permission should include within its scope all use of the vehicle by the first permittee consented to by him.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. John Robert NICOLAUS.
    No. 58052.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      Vincent Wilkins, Jr., Director and Appellate Counsel, Office of Public Defender, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The East Baton Rouge Grand Jury indicted John Robert Nicolaus for first degree murder, a violation of LSA-R.S. 14:30. A unanimous jury found the defendant guilty as charged. The trial court imposed the mandatory death sentence.

The defendant appeals from this conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

The defendant contends that the judge improperly excused a prospective jur- or for cause. He argues that it was not unmistakably clear that her conscientious scruples against capital punishment prevented her from making an impartial decision as to the defendant’s guilt. See, LSA-C.Cr.P. Art. 798(2).

Counsel relies on Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). There the United States Supreme Court held:

“. . . that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

On July 2, 1976, the U. S. Supreme Court invalidated the mandatory death penalty provision of our first degree murder statute, LSA-R.S. 14:30, as violative of the Eighth and Fourteenth Amendments, Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Complying with this decision, this Court has concluded:

. . that the appropriate sentence to be imposed upon a valid conviction for first degree murder is the most severe penalty established by the legislature for criminal homicide at the time of the offense, La.R.S. 14:29 et seq., which we may presume to be constitutional in the wake of Roberts v. Louisiana, supra. This penalty is imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty years. See La.R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1.”

State v. Jenkins, La., 340 So.2d 157 (1976). See also State v. Sledge, La., 340 So.2d 205 (1976); State v. Morris, La., 340 So.2d 195 (1976); State v. Lee, La., 340 So.2d 180 (1976); State v. Craig, La., 340 So.2d 191 (1976).

We have uniformly held that a defendant insulated from the death penalty has no valid Witherspoon complaint. State v. Rester, La., 309 So.2d 321 (1975); State v. Adams, La., 302 So.2d 599 (1974); State v. Brown, La., 302 So.2d 290 (1974); State v. Fallon, La., 290 So.2d 273 (1974).

ASSIGNMENT OF ERROR NO. 2

Defense complains of the court’s denial of his motion for a mistrial. He argues that the jurors and prospective jurors saw the defendant attired in his jail uniform. He relies on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Estelle held that the State cannot compel the accused to stand trial before a jury while dressed in identifiable prison clothes. The objective of this ruling was to protect defendants from the mere possibility of an impairment of the presumption of innocence, which is basic to the adversary system.

We hold that Estelle is not directly applicable to the case at bar because the defendant was not compelled to stand trial attired in prison garb.

Although a jail attendant denied defendant’s request to wear his own clothes, the Sheriff provided him with a shirt and blue denim pants, neither of which had any recognizable prison markings or numbers. The trial judge so noted. The shirt and blue denim jeans are similar to the casual clothing worn by many young people today. The members chosen for the jury viewed the defendant dressed in that attire less than three hours during voir dire examination. During this time, defense counsel failed to object to the clothes worn by the defendant. However, when the defense voiced an objection, the trial judge recessed and ordered that the defendant be given a different colored sport shirt.

We conclude that the trial judge correctly denied the motion for a mistrial.

ASSIGNMENTS OF ERROR NOS. 3,

4, AND 5

The defendant assigns as error rulings of the trial judge which allowed Dr. Hypolite Landry, the East Baton Rouge Parish Coroner, to testify to the victim’s condition (a deceased surgical patient with multiple stab wounds) and the cause of his death (cardiac arrest caused by the loss of blood due to stab wounds of the chest and abdomen). The defendant objected to the above testimony on the grounds that it was hearsay and that it violated the best evidence rule.

The testimony discloses that the coroner personally observed the victim’s body and conducted an examination. He did not perform a complete autopsy.

He observed that the victim had multiple stab wounds of the left back and left flank area, as well as a surgical incision of his abdomen and lung.

It is true that the Coroner’s medical opinion was based in part upon the hospital records and the medical report of the operating surgeon but this does not render his testimony inadmissible.

In State v. Jones, La., 320 So.2d 182 (1975), we held:

“These bills were taken solely on the basis that the doctor’s opinion as to the cause of death was based in part upon this medical report. We find no merit to the complaint. Under such circumstances, the doctor’s opinion as to cause of death is not inadmissible merely because it is in part based upon other medical or laboratory reports as well as upon his personal examination. State v. Sneed, 316 So.2d 372 (La.1975). See McCormick on Evidence, Sections 15, 314 (at pp. 732-33) (2d ed., 1972). Cf. Federal Rule of Evidence 703 (1975); also State v. Bray, 292 So.2d 697 (La.1974). The defense was not prevented from securing the testimony of the pathologist, for instance, if there had been any serious issue as to the cause of death being other than the stab wound; nor are we presented with a borderline diagnosis, where the trial court’s discretion might condition the admission of the witness’s opinion as to cause of death upon producing the pathologist (upon whose report the witness in part relied) for cross-examination, McCormick, Ibid.”

Here, as in the case cited, there was no serious issue as to the cause of death. We conclude that these assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 6

This complaint arose during the direct examination of Terry Sullivan, one of defendant’s accomplices. He asserts that the court erred by allowing the prosecutor to repeatedly question Sullivan as to who stabbed the victim after he had responded that he did not know. Defense counsel asserts that the trial court abused its discretion.

The transcript indicates that the prosecutor covered this ground three times. In defending its repetitive interrogation, the State retorted that it was necessary to pursue this type of examination since its witness had become hostile. Although the judge overruled the objection, the State never returned to this line of questioning.

The trial judge is vested with sound discretion in the examination of witnesses. LSA-R.S. 15:275. Although the State’s question was repetitious, the answer sought was extremely relevant to the defendant’s guilt or innocence. We discern no basis to conclude that the judge abused his discretion.

ASSIGNMENT OF ERROR NO. 7

On cross-examination, the district attorney asked Stanley Sullivan, the father of an accomplice of the defendant, what he knew about this case. He replied that he knew nothing. The following interrogation then occurred:

“[DISTRICT ATTORNEY]: Well, let me ask you this. When your son was on trial here not long ago, you stood there and you pleaded the Fifth Amendment .
“[DEFENSE COUNSEL]: I object to the question. I don’t think its relevant at all in this case and I think it’s improper cross examination.
“[DISTRICT ATTORNEY]: I think it’s very relevant.
“THE COURT: The objection is overruled.” (Tr. pp. 226-227)

In his brief, the defendant contends that the court erred in overruling his objection. He asserts the Fifth Amendment privilege against self-incrimination invoked by the witness is a prior inconsistent statement, and that the State failed to lay the proper foundation mandated by LSA-R.S. 15:493.

The purpose of an objection is to apprise the trial judge of the alleged error and the basis for the complaint. The judge is thus afforded the opportunity to intelligently rule on the complaint and to take corrective action. The judge is not afforded this opportunity when a vague and general objection is urged, such as the one before us: improper cross-examination. State v. Irvine, 126 La. 434, 52 So. 567 (1910). Since the objection made at this trial is not sufficiently specific to alert the judge to the ground of the complaint, we think it is insufficient. In State v. Powell, La., 325 So.2d 791 (1976), we stated:

“It is well settled that counsel must state the basis for his objection when making it and point out the specific error which the trial court is making. An assignment of error reserved to a trial court ruling where there is no basis for objection stated and no specific error pointed out presents nothing for the review of this Court. State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); State v. Marcell, 248 La. 1019, 183 So.2d 341 (1966); State v. Foss, 158 La. 471, 104 So. 211 (1925).”

Since the United States Supreme Court struck down our provisions relative to capital punishment, the defendant must be resentenced. Roberts v. State of Louisiana, supra. The appropriate sentence to be imposed on a defendant properly convicted of first degree murder but improperly sentenced is the most severe penalty set forth for criminal homicide at the time of the offense. Therefore, the defendant is to be resentenced to imprisonment at hard labor for life without the benefit of parole, probation, or suspension of sentence for a period of twenty years. See State v. Jenkins, supra.

For the reasons assigned, the conviction is affirmed, but the death sentence imposed is annulled and set aside, and the case is remanded to the district court, with instructions to the trial judge to sentence the defendant to imprisonment at hard labor for life without eligibility for parole, probation, or suspension of sentence for a period of twenty years.

TATE, J., concurs in the result as to Assignment No. one for reasons assigned in the concurring opinion in State v. Miles, La., 339 So.2d 735 (1976).

CALOGERO, J., concurs in the result, and does not agree with the majority’s treatment of Assignment of error No. 7.

      . The author of this opinion dissented from the sentence reduction in these judgments. See his dissent in State v. Davenport, 340 So.2d 251 (1976).