ON REHEARING
DREW, J.A rehearing was granted in this case on the application of appellant on showing to the court that it had erred in assuming that the lower court had passed on the merits of the case when in truth and in fact the lower court had only sustained an exception of no cause of action.
Plaintiff was an employee of F. & M. Schwartz, who were insured against loss by reason of injuries to their employees by the defendant, Southern Surety Company. After plaintiff received the injury of which he complains, the defendant herein paid to him compensation for about forty weeks, when it ceased its payments. In the meantime F. & M. Schwartz nad left the state of Louisiana, and plaintiff brought suit against defendant, claiming compensation. An exception of no cause of action was filed and argued. At that time the jurisprudence of this state was divided on the question of the right of an employee to sue the insurance company for compensation alleged to be due him by reaspn of injuries arising out of his employment, and the district court overruled the exception. Later the case was tried on its merits, and before decision on the merits was rendered one of the Courts of *396Appeal rendered a decision sustaining an exception of no cause of action in a similar suit, and tire district court, acting on the authority of that decision, rendered judgment sustaining the exception of no cause of action and rejecting plaintiff’s demands. The judgment, as signed, led this court to assume that it was a judgment on the merits of the case, when in fact the merits of the case had not been ¡passed on by the lower court. This is alleged by the’ appellant and admitted by the appellee.
The right of an employee to sue the insurer of his employer for compensation alleged to be due him for injuries arising out of his employment has been definitely settled in the affirmative in the following cases: Wyatt v. Finley, 167 La. 161, 118 So. 874; Woods v. U. S. Fidelity & G. Co , 167 La. 411, 119 So. 409.
Appellant filed in this court in due time a motion to have the case remanded to the lower court for a decision on the merits.
The district court has not passed on the merits, and this being the situation, we would have to exercise original jurisdiction to pass on the issues raised, and this we cannot do as we are vested with appellate jurisdiction only.
Hargrove v. O’Banion, 4 La. App. 421; Rayville State Bank v. Compress Co., 3 La. App. 191.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed, and that the case be remanded to the district court to be tried in accordance with law.
Cost of appeal to be paid by plaintiff, appellant.