Anderson v. Miller Scrap Iron Co.
Decision Date | 11 April 1922 |
Citation | 176 Wis. 521,187 N.W. 746 |
Parties | ANDERSON v. MILLER SCRAP IRON CO. ET AL. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court, Brown County.
On rehearing. Former opinion affirmed.
For former opinion, see 182 N. W. 852.
Eschweiler, J., dissenting.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.
Kittell, Jaseph & Young, of Green Bay, for respondent.
An order for rehearing having been granted herein, it is ordered that the case be placed at the foot of the December, 1921, assignment for reargument, and the following questions are suggested for discussion:
1. The opinion rendered herein is based on the assumption that the cause of action upon which judgment was rendered never vested in the deceased and did not survive. This appears to have been erroneous assumption, and the appellant contends that the logic of the opinion does not apply to a situation where the cause of action vested in the deceased and survived. We have not had the benefit of respondent's views on this question and we desire an expression of his opinion thereon.
2. Was there in fact reversible error in the trial proceedings resulting in the judgment against Herman Miller, which was reversed, in 169 Wis. 106, 170 N. W. 275, 171 N. W. 935?
3. Upon that appeal the judgment was reversed, and the cause remanded for further proceedings according to law. Did the judgment of the trial court, dismissing the complaint as to Herman Miller, from which judgment this appeal is taken, under the circumstances constitute further proceedings according to law in conformity with that mandate? If not, what course should the trial court have followed in obedience to the mandate? At that time did the Miller Scrap Iron Company have such an interest in the cause of action set forth in the complaint as to entitle it to be heard in opposition to the motion to dismiss as to Herman Miller?
4. Upon this appeal, has this court power or jurisdiction to modify its former mandate by directing that judgment be entered in favor of the Miller Scrap Iron Company and against Herman Miller, or in any other manner? Does the record disclose that the Herman Miller Scrap Iron Company, or the casualty company, succeeded to the rights of the plaintiff in the cause of action set forth in the complaint?
5. Any other questions that may occur to counsel.
The original opinion (sec. 182 N. W. 852) proceeded on the assumption that the cause of action upon which recovery was obtained was founded upon the death statute of the state of Michigan. Upon a motion for rehearing, our attention was called to the fact that the original complaint set forth two causes of action, one based on the death statute and the other on the survival act of the state of Michigan, by virtue of which a cause of action to recover damages for personal injuries survived and vested in the personal representatives of the deceased, and that, during the course of the trial, the cause of action founded on the death statute of the state of Michigan was dismissed, and only the survived cause of action was submitted to the jury. It was urged upon such motion that the logic of the opinion did not apply to such survived cause of action, because it had vested in the deceased prior to his death. It appearing that this might be true, a rehearing was granted, and the question thus raised was fully argued.
It appears that the death statute of the state of Michigan gives rise to a cause of action in favor of the personal representatives of a deceased person who has come to his death by the wrongful act of another, only when there is no substantial interval between the accident or wrongful act and the death. Where there is any substantial interval, a cause of action vests in the injured person, which upon his death survives and vests in his personal representatives. Under the decisions of the Michigan Supreme Court the measure of damages in such survived action includes loss of earning ability of the injured person for the length of time that he probably would have lived had he not been injured, and the loss sustained by reason of being deprived by such injury of the ability to labor and earn money during the time he probably would have lived had he not been injured. Olivier v. Houghton St. Ry. Co., 134 Mich. 367, 96 N. W. 434, 104 Am. St. Rep. 607, 3 Ann. Cas. 53.
In this case Boncher lived about five weeks after the injury, so that there was a substantial interval between the accident and his death. Consequently a cause of action vested in him prior to his death, which survived and vested in his personal representatives. But, unlike the cause of action which survives under the statutes of this state, it was competent for his administrator to recover, not only for the damage sustained by him up to the time of his death, but for the loss of earnings during the time he probably would have lived had he not been injured. The practical effect of this ruling by the Supreme Court of the state of Michigan is to dispense with two causes of action and to make all damages recoverable in one cause of action, whether death be instantaneous or not.
[1][2] The fact is, however, that this accident occurred in the state of Michigan. The rights and liabilities of the parties are fixed by the law of the state of Michigan. Bain v. Northern Pacific Railway Co., 120 Wis. 412, 98 N. W. 241. The cause of action is based on the law of the state of Michigan. The law of that state was proved upon the trial, and the jury were authorized to assess damages conformably to the law of that state. The only difference, therefore, between the cause of action upon which recovery was obtained and the cause of action assumed in the opinion, is that this cause of action did vest in Boncher prior to his death. While what was said in the opinion to the effect that a transition of the title to the cause of action from Boncher to any one else “cannot be attributed to any act of Boncher because, as already pointed out, he had no title thereto and was impotent to convey title to any one else,” is not applicable to the cause of action with which we are dealing, it by no means follows that the cause of action was assigned by Boncher to any one else. There is no claim that he attempted to assign it during his lifetime. Neither did he make application for compensation during his lifetime. Had he made such application it probably would have worked an assignment of his cause of action against Herman Miller to his employer, under the provisions of St. 1921, § 2394--25. But he did not do so, consequently no assignment of the cause of action can be attributed to any act of his. It should be noted that no assignment of such a cause of action takes place under the Compensation Act until application is made for compensation under the act. Upon his death, the cause of action vested in his personal representatives, by force of the Michigan survival statute. It was a different cause of action from that which would have vested in the personal representatives of the deceased, under and by virtue of the statutes of this state, had the accident occurred in this state. The action which survives under our statutes is an action for the damages which he had sustained up to the time of his death. The action which survived and vested in his personal representatives by virtue of the Michigan statute was an action to recover damages, including his loss of earning power, during the time he might probably have lived.
There is no room, therefore, for saying that the cause of action set forth in the complaint, upon which recovery was obtained, is not founded upon the Michigan statute. It is a cause of action which vested in the plaintiff administratrix under and by virtue of the Michigan law, not for the benefit of the widow, but for the benefit of those who would take the intestate personal property of the deceased. Section 14578, Compiled Laws of Michigan 1915. It is beyond the power of the Legislature of this state to divert this action from the plaintiff administratrix. While, as stated in the opinion, this may be done with reference to a cause of action created by the statutes of this state, because such a cause of action is at all times under the control of the Legislature of this state, to attribute power to our Legislature to thus interfere with a cause of action springing from the statutes of another state is to accord to the enactments of the Legislature of this state extraterritorial effect. It is beyond the power of the Legislature of this state to provide that one person can assign a cause of action which belongs to another, or that any act on the part of one shall operate as an assignment of a cause of action, arising under the laws of a sister state, and which the statutes of that state vest in another.
We adhere to the conclusion announced in the original opinion.
CROWNHART, J., took no part.
One Joseph Boncher, a resident of Wisconsin, was employed by the defendant company, a Wisconsin corporation. They were both subject to the Workmen's Compensation Act (St. 1921, §§ 2394--1 to 2394--32). On June 30, 1917, in the course of his employment, but while in the state of Michigan, Boncher was fatally injured through the overturning of an automobile driven by defendant Herman Miller, secretary and agent of the defendant company. On the death of Boncher, shortly after the accident, the plaintiff was appointed his administratrix in Brown county, Wisconsin. She brought this action in the municipal court for Brown county, to recover damages...
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