Co. v. Ind. Com., 197 Pac. 589, 15 A. L. R. 799. The following are the findings upon which the Commission based its award: "III. That on the 10th day of January, 1920, David Murphy, of Salt Lake City, state of Utah, was injured by accident arising out of or in the course of his employment, while engaged in the usual course of his trade, business, profession, or occupation of the defendant employer of Provo Canyon, state of Utah. "IV. That said injury was caused from being exposed to severely cold weather while at his work on January 10, 1920, which resulted in the ends of several of his fingers becoming frozen and later requiring the amputation of right thumb at distal joint, right first finger one-half distal phalanx. right second finger one-half distal phalanx, right third finger three-fourths distal phalanx, left fourth finger three-fourths distal phalanx." It is not necessary to prolong the discussion. Being convinced, as 1 am, that Clarence Snyder. the employee in this case. on the 17th day of January, 1921, at a definite time and place, while in the course of his employment, received an injury by inhaling gas, wholly unexpected by him, and that such injury aggravated and accelerated a pre-existing disease and rendered him wholly unable to thereafter continue his usual employment, I am of the opinion that the findings, conclusions, and award of the defendant Commission should be affirmed, with interest on payments past due, at plaintiffs' costs. Corfman, C. J. and Weber and Gideon, JJ., concur. FRICK, J. I have had much difficulty in arriving at a conclusion in this case. I have always entertained much doubt as to whether the injury from which the applicant, Mr. Snyder, is suffering is the result of an accident within the purview of our statute. As I read the evidence the work in the flue was done in the usual and ordinary way. The gases in the flue were known to be there, and the purpose for which the flue was constructed was to carry off the gases, and thus make them harmless. Mr. Snyder and his companion, on entering the flue, expected to encounter the gases, precisely the same as they would have expected to meet the cold air on an unusually cold day in midwinter by leaving a heated room to go into the open air to do some work. If under such conditions one or the other had contracted a severe cold, I cannot sec how that cold could be said to be the result of an accident. So here, the mere fact that Mr. Snyder was affected by the gases in the flue contrary to his expectations cannot constitute an accident. If something had gone wrong with his respirator, or if something unexpected or unforeseen had happened in the flue causing an excessive amount of gas to be present, or if Mr. Snyder had been accidentally tripped or had fallen by reason of which his respirator had become displaced, and he had thus inhaled an excessive amount of gas, there would be at least some basis for the contention that there was an accident. The mere fact, however. that he was affected by the gases in the flue, as I view it, does not constitute an accident. While it is true that an accident is "an event not within one's foresight and expectation resulting in a mishap causing injury," it is not every unexpected consequence or result that constitutes an accident. As I view it, if an accident actually occurs it exists as such whether any injury results therefrom or not. The injury is not the accident, but it is merely the result of the accident. In this case, as I see it, if there was an accident Mr. Snyder's companion, who was with him in the flue, must also have suffered an accident, the only difference between him and Mr. Snyder being that the former escaped without injury, while the latter did not. Mr. Snyder's companion was, however, not subjected to an accident, and if he was not I cannot see how Mr. Snyder was. The mere fact, therefore, that Mr. Snyder was deleteriously, affected by the gases in the flue is assumed as constituting the accident in this case. The consequential injury is therefore taken as constituting the accident. In view, however, that all of my associates have arrived at the conclusion that Mr. Snyder met with an accident within the meaning of our statute, and that his ailment is the result of that accident either in whole or in part, I must be wrong in my conclusion. I therefore yield to the judgment of my associates, and for that reason concur in their conclusion. ANDERSON v. MILLER SCRAP IRON CO. ET AL. 187 Northwestern Reporter, 746. `2 MASTER AND SERVANT – PAYMENT OF COMPENSATION NOT OPERATIVE AS "ASSIGNMENT OF CAUSE OF ACTION" UNDER STATUTE OF OTHER STATE. Where an employee, who died as a result of an accident occurring in the state of Michigan, did not assign the cause of action or apply for Compensation under Workmen's Compensation Act during his lifetime, the payment of compensation on the application of the surviving wife did not, under St. 1921, § 2394-25, operate as an assignment of the cause of action under Comp. Laws Mich. 1915, § 14578, providing for survival of cause of action vested in a deceased prior to his death. (For other cases, see Master and Servant, Dec. Dig. § 389.) (For other definitions, see Words and Phrases, First and Second Series, Assignment.) Eschweiler, J., dissenting. Appeal from Municipal Court, Brown County. For former opinion, see 182 N. W. 852. Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant. PER CURIAM. 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 169 106, 170 N. W. 275, 171 N. W. 935? Wis. 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 rot, 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 Mil ler? 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. OWEN, J. 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. B 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 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. action 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 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 under the control of the Legislature of this state, to attribute 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 of the Legislature of this state to provide that one person can 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 the laws of a sister state, and which the statutes of that state vest in another. times power power assign under We adhere to the conclusion announced in the original opinion. ESCHWEILER, J. (dissenting). 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, 88 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 against both the employer and Herman Miller for negligence, asserting her right upon certain Michigan statutes. The defendant company asserted, as a defense, that any and all remedies on account of the injury to and death of the employee, Joseph Boncher, were for compensation under the Wisconsin Compensation Act, and nowhere else. |