Travelers' Ins. Co. v. Inman , 157 Miss. 810 ( 1930 )

ON SUGGESTION OF ERROR. On the suggestion of error, for the first time, counsel has called our attention to the provisions of section 23 of the Louisiana Workmen's Compensation Law, as amended and re-enacted by Act No. 85 of 1926, which provides:

"That no policy of insurance against liability arising under this act shall be issued unless it contains the agreement of the insurer that it will promptly pay to the person entitled to compensation all installments of the compensation that may be awarded or agreed upon, and that this obligation shall not be affected by any default of the insured after the injury, or by any default in the giving of any notice required by such policy, or otherwise. Such agreement shall be construed to be a directobligation by the insurer to the person entitled to compensation,enforceable in his name," etc. (Italics supplied.)

In the case of Wyatt v. Finley, 167 La. 161, 118 So. 874, the supreme court of Louisiana construed the above-quoted act and held thereon that an employer is not a necessary party to an action for compensation for the death of an employee, but that the insurance carrier may be sued directly and individually on its primary obligation, and hence it is not necessary that such compensation should be first awarded or agreed upon in a suit against an employer before bringing suit against the insurance carrier.

In administering the laws of the state of Louisiana, of course, we are bound by the construction given such laws by the supreme court of Louisiana, and had this case been before us, we would, of course, have followed it.

However, the suggestion of error cannot be sustained entirely, and the judgment affirmed as rendered in the court below, because the complainant, in that court, did not proceed upon the theory now advanced, but proceeded upon a theory that the insurance company owed the employers of the plaintiff. Also, there was a failure to prove the injury and the extent thereof as against the insurance company, and a default pro confesso decree was taken against the employers, Tibbetts Tibbetts, and this pro confesso decree was offered in evidence against the Travellers' Insurance Company in lieu of the proper proof by witnesses, which would be necessary in a direct proceeding by the complainant against the Travellers' Insurance Company.

We do not apply the rule in this case that, where a party tries a case upon one theory, he will be held to that theory on an appeal, for the reason that the record contains liability for the injury to the complainant by the insurance company, and to apply that rule would be to have the bill dismissed, which would preclude any future action upon such policy.

In the opinion formerly rendered, reference was made to the case of Blair v. R.R. Co., 76 Miss. 478, 24 So. 879. Since that decision the statute has been amended so as to add the following:

"The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been personally served upon him or if he has entered an appearance." Section 307, Hemingway's Code 1927.

See opinion on suggestion of error in case of Branham v. Drew Grocery Co., 145 Miss. 627, 111 So. 155.

Therefore, on a remand of the cause to the court below, the proceedings may be amended as the parties may be advised is necessary, the cause tried and a personal judgment rendered, if proper, against the Travellers' Insurance Company.

The suggestion of error will be sustained in part, and overruled in part.

Sustained in part.