The opinion
ON REHEARING
TATE, Justice
(dissenting).
I respectfully dissent.
This js a tort suit. The liability of-the defendant (“Michigan Millers”) depends upon fault. As both the trial and intermediate courts found, the driver-employee of the plaintiff before us (“Ashy”) was contributorily negligent with regard to the accident in which his' có-e'mployee passenger, Vidrine, was injured. '
Ashy, which paid compensation to Vidrine, seeks to recover the compensation so paid from Michigan Millers on the ground of its insured’s fault.- Despite the admitted' fact that Ashy (by imputation of its driver^ employee’s actions) .is contributorily negligent, we allow Ashy to recover in this-tort: suit. ' ■ . •
I suggest that,- under principles of Louisi--' ana tort law, this result is wrong. Plaintiffs who are contributorily negligent are denied recovery in a tort suit.'
In allowing recovery, the majority relies upon the provisions of La.R.S. 23:1101-1103 (a redaction of a 1920 act), which, permit an injured employee to recover damages from a third person when the circumstances have created in such person “a legal liability-to pay damages in respect thereto”. ’ La. R.-S. 23:1101. The samé: statutory ■ provisions likewise permit ah employer to recover from such third person amounts he has paid or become obligated to-pay to afi injured employee as a result of the accident.
I respectfully suggest that the 1920 legislature never intended to abrogate fundamental tort law by permitting a negligent employer to recover- from -a third person *340 compensation-indemnification, where the employer’s own fault was a contributory cause of the injuries and damages for which recovery is sought.
Just as the statutory provision (La.R.S. 23:1101) does not authorize an employee to recover damages from the third person when the employee himself is at fault, so it does not authorize an employer at fault to profit by its own fault and be indemnified for compensation benefits paid to an injured employee because of the employer’s fault. In neither case does the statutory language exclude recovery when the respective plaintiff (employee or employer) is cóntributorily negligent; in both cases, in my opinion, this bar to recovery is implied, because in neither case does the third person have a “legal liability to pay damages in respect” to the accident. La.R.S. 23:1101.
I should note that the 1920 provisions incorporated in the 1950 Revised Statutes have at least since 1933 been interpreted by this court as providing an independent right-cause of action in the employer to recovery in tort, independent of any rights of the injured employee to recovery in tort. Board of Commissioners, etc. v. City of New Orleans, 223 La. 199 , 65 So.2d 313 (1963).
I am thus unable to subscribe to the majority’s view that, although the basis of the defendant’s (Michigan Millers) liability is fault under Civil Code Article 2315, nevertheless the fault of the present plaintiff (Ashy) does not bar recovery in the present suit, though it would in all other tort actions.
I respectfully dissent.