(dissenting).
The appellant has pressed, both in the district court and here, two propositions:
“1. Paragraph 7 of the policy states, ‘Assault and Battery shall be deemed an accident unless committed by or at the direction of the Insured.’ William B. Reites was the named insured; Beatrice Adams, his aunt, was the defined insured. The word ‘Insured’ in the above clause means the named insured. And in the alternative:
“2. Due to the insanity of the driver, Beatrice Adams, at the time of the tragedy she was incapable of committing a deliberate and willful act and that, therefore, the death of Mack Franklin Jernigan was caused by an accident under the terms of the policy.” Appellant’s Brief, filed Feb. 2, 1959, pp. 2-3.
Upon original hearing, this Court decided proposition 1 with the appellant, and did not pass upon the alternative proposition. The ground upon which our decision is based is important because a decision based upon proposition 1 would serve as a precedent in common law states in construing the quoted standard provision of an automobile liability insurance policy, while a decision based upon proposition 2 might rest upon the civil law rule peculiar to the State of Louisiana. I am convinced that we erred in deciding proposition 1 with the appellant.
Referring to Western Casualty & Surety Co. v. Aponaug Mfg. Co., 5 Cir., 1952, 197 F.2d 673, our original opinion stated [269 F.2d 357]:
“ * * * Our holding there that excluding the insured from those whose assaults would be protected referred only to the named insured and was based upon the idea that some courts hold that it is against public policy for a person to obtain insurance which provides indemnity against his own willful act.”
That statement of the holding in Apon-aug is, I submit, clearly erroneous. Earlier in our original opinion, there is a long quotation from the opinion in the Aponaug case, concluding with the sentence [197 F.2d 674]:
“ ‘The reasonable construction of that clause, it seems to us, is that it was inserted out of deference to the question of public policy involved in insurance indemnifying against an insured’s willful act.’ ”
Western Casualty & Surety Co. v. Apon-aug Mfg. Co., supra, 197 F.2d at page 674.
*862The error in our statement of the holding in Aponaug becomes apparent when the quotation is extended to include the next two sentences:
“The word ‘the’ qualifies the word ‘insured' and means, we think, that when the coverage of the policy as to a particular insured is at issue and that insured either committed or directed the assault and battery, then, as to such insured the assault and battery shall not be deemed an accident. The clause is without effect as to other persons insured who neither committed nor directed the commission of the assault and battery.” 197 F.2d at page 674.
Many cases1 hold that it is contrary to public policy to insure a person against financial responsibility for his own willful wrong or criminal misconduct. The encouragement of wrongdoing is no less, or if less, then only by an immaterial shade, in cases where the insurance is procured by a person other than the willful wrongdoer but in which he becomes an insured under the “omnibus clause.” Certainly, an insurance company may properly draft its policy so as to exclude coverage in either instance. The ratio decidendi of Aponaug is, I submit, sound. The dictum to the contrary, appearing toward the end of the opinion, apparently as an afterthought, in Barringer v. Employer’s Mutual Liability Ins. Co., La.App., 1952, 62 So.2d 173, 177, should not cause us to depart from the reasoning in Aponaug.
The standard liability policy is carefully drafted to refer to “the named insured” in the many instances where the meaning is so restricted. It is not so restricted in the “omnibus clause”:
“(a) 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 using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.”
Liability of the insurer in this case is based upon the “omnibus clause.” William B. Reites was the named insured. The district court found:
“William B. Reites did, on May 1, 1956, grant to Beatrice Adams, a registered operator, permission to use said 1952 Chevrolet automobile * * * That William B. 'Reites had no knowledge that Beatrice Adams had any mental infirmities or difficulty, or had received medical treatment therefor.”
Our original opinion and decision fastens no liability upon the appellee insurance company because of any negligence or fault on the part of the named insured, but solely because of the fault of Beatrice Adams who was using the automobile with the permission of the named insured and was therefore included as an insured under the omnibus clause.
The policy contains a particular provision providing when assault and battery shall be deemed an accident.2 In assault and battery cases, that provision controls over any general concept of the meaning of “accident.” 3 When there is at issue only the coverage of the policy as to Beatrice Adams, an insured under the *863omnibus clause, it is error for us to hold that an assault and battery committed by that insured shall be deemed an accident.
Whether or not the majority is right as to proposition 1, it seems to me that we should not avoid consideration and decision of the principles upon which proposition 2 is based, for, in my opinion, under the Louisiana law, Beatrice Adams’ insanity itself was a complete and independent defense.
I would agree that, under the civil law prevailing in Louisiana, Beatrice Adams, being insane, did not, in a legal sense, commit assault and battery. In Louisiana, as elsewhere, an intention to do harm is of the essence of an assault and battery 4
At common law, an insane person is liable in a tort action for assault and battery.5 Louisiana, however, follows the civil law in basing tort liability on fault. Article 2315 of the LSA-Civil Code provides that, “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it * * In Yancey v. Maestri, La.App.1934, 155 So. 509, 515, after most careful consideration, it was held that this statute, interpreted in the light of its historical origin and background, is limited by the civil law rule that an insane person is not liable for his torts.6
Thus, I agree with the first part of appellant’s alternative proposition 2,’7 The conclusion in the second part,8 however, seems to me a complete non sequitur. In Louisiana, insanity such as exists in this case9 is more than a mere personal defense to tort liability — there is an utter lack of legal basis to hold an insane person liable for his torts. The policy involved obligated the insurance company to pay all sums which the insured shall become legally obligated to pay as damages, etc. Since the insane insured did not become liable to pay damages, it necessarily follows that there was no liability on the part of the insurance company. I now think that the judgment so holding should be affirmed, and therefore respectfully dissent.
. See, for example, the cases cited in Farm Bureau Mutual Automobile Insurance Co. v. Hammer, 4 Cir., 1949, 177 F.2d 793, 795, and in Haser v. Maryland Casualty Co., 78 N.D. 893, 53 N.W.2d 508, 33 A.L.R.2d 1018.
. “Assault and Battery shall be deemed an accident unless committed by or at the direction of the insured.”
. Farm Bureau Mutual Automobile Ins. Co. v. Hammer, 4 Cir., 1949, 177 F.2d 793, 796; Anton v. Fidelity & Casualty Co. of New York, 1952, 117 Vt. 300, 91 A.2d 697, 700.
. Osborne v. People’s Benev. Industrial Life Ins. Co., 1932, 19 La.App. 667, 139 So. 733, 735.
. 4 A.L.I., Restatement of Torts, See. 887, Comment a, p. 488; Prosser on Torts, 2d ed„ Sec. 109, p. 791; 6 C.J.S. Assault and Battery § 25(b) (2), p. 829.
. Another Louisiana statute, Article 2319 of the LSA-Civil Code, provides: “The curators of insane persons are answerable for the damage occasioned by those under their care.” That article is discussed in Yancey v. Maestri, supra, 155 So. at page 517:
“ * * * Our view is that the purpose of the article is to make the curator individually and personally answerable for the damage occasioned by the insane person in his charge and not in his capacity as representative of the estate of the insane person. Whether or not the article means that the curator is liable in damages for the acts of the interdicted person only where the curator was guilty of negligence and carelessness in not properly restraining and guarding his charge, or whether he is liable in any event under the theory that he, at his peril, must prevent the insane person from wrongfully causing damage to another, is a question which we need not decide at this time.”
It has been suggested that fault must be charged to the curator because of the lack of culpability of the insane person. See “Tort Doctrine of Louisiana,” F. F. Stone, 17 Tulano Law Review 159, at 192. In any event, a curator’s liability is not involved in this caso, and Article 2319 does not detract from the well-established civil law rule that an insane person is not liable for this torts. Yancey v. Maestri, supra.
. “Due to the insanity of the driver, Beatrice Adams, at the time of the tragedy she was incapable of committing a deliberate and willful act. * * * ”
. “ * * * and that, therefore, the death of Mack Franklin Jernigan was caused by an accident under the terms of the policy.”
. That is that the insured Beatrice Adams “was legally insane under the MeNaugh-ton formula, particularly that part which states, ‘that he did not know what he was doing was wrong.’ ”