¶1Dissenting.
¶2Griffin was a laborer; he was employed by Thomas Moulding Brick Co. of Chicago, a sub-contractor on a building; the Employer’s Liability Assurance Co. signed their compensation bond; Griffin was killed in the building; his widow sued the contractor and the Moulding Co. and the Assurance Co. under Sec. 25 of the Act of 1914; the Thomas Moulding Co. of Chicago was served but dropped out of the case. The assurance company excepted that under Section 23 of the Act of 1914 the obligation of the assurance company is “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”, and the argument is advanced that it is only where and after compensation may have been awarded or agreed upon that the policy of insurance matures into a contract for the benefit of the employee, and when his right of action accrues against the assurance company.
¶3I am of the opinion that the liability of the assurance company is fixed at the time of the signing of the policy of insurance. If, however, an award or an agreement was a condition precedent to the right of action against the assurance company then the suit against it was not without cause or right of action, but was only premature, Chalaron vs. McFarland, 9 La. 230, and prematurity was not pleaded and cannot be supplied. But admitting that the statute does require a previous award, the evidence is that the Moulding Company resides in Chicago and that it cannot be sued in this state. Article C. C. 3066 provides that no suit shall be instituted against any surety on an appeal bond until the necessary steps have been taken to enforce payment against the principal.”
¶4Yet our Supreme Court has decided that, notwithstanding this article, a creditor may proceed at once against the surety before any suit shall have'been instituted against the principal whenever it shall appear that proceedings against the princpial are not possible, or unavailing, or useless, or when the principal has no property or is absent. Gale vs. Doll, 28 La. Ann. 718; Pinard vs. George, 30 A. 386; State vs. Jacob & Gunter, 30 La. Ann. 535; Rieks vs. Gantt, 35 La. Ann. 923; Aaren vs. McDonald, 32 La. Ann. 989; Bourgeat vs. Adams, 11 La. Ann. 78; Thompson vs. American Surety, 144 La. 1106, 81 So. 731.
¶5In Alley vs. Hawthorne, 1 La. Ann. 122, the court said on p. 126:
“We think that if the creditor cannot take out his execution on the judgment by reason of a change in the condition of the debtor’s estate which prevents its being reached by that process the law requires from him no act in order to secure his immediate recourse against the surety on an appeal bond, and that we can require none.”
¶6A fortiori is this the case when the liability statute provides under Section 17, S. 4, that “the judge shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided. The judge shall decide the merits of the controversy as equitably, summarily, and simply as may be”.
¶7For these reasons I respectfully dissent.
¶8Judge.