¶1(dissenting in part).
¶2I agree that the defendant was justified in relying upon his insurer to answer or appear and because of that I think it follows under our practice that he is entitled to be relieved of his default and permitted to file an answer, and have the issues of the tort action tried in circuit Court. As I understand the opinion it does not permit him to do so. Unless this is done it seems to me that we are either ignoring that action or are anticipatively deciding it against the plaintiff on this record.
¶3One of the defenses presented by the proposed answer is that plaintiff is barred from maintaining a tort action because his employment at the time of his injury was subject to our Workmen’s Compensation Act. If that question is decided by the trial court against the plaintiff, then proceedings should be had under the Act on the same conditions and terms as are prescribed in the opinion. Accordingly, I would reverse.