The following opinion was filed May 3, 1921:
Owen, J.
After the decision in this case, reported in 169 Wis. 106, 170 N. W. 275, 171 N. W. 935, the widow, Mrs. Boncher, made application for compensation under the provisions of the workmen’s compensation act. The industrial commission made an award in her favor, which award was affirmed by this court in Miller Scrap Iron Co. v. Boncher, 173 Wis. 257, 180 N. W. 826. The Miller Scrap Iron Company claims that it has acquired this cause of action and is entitled to continue the prosecution thereof against Herman Miller; that it was aggrieved by the dismissal of the action as to Herman Miller by the lower court, and brings this appeal to secure a reversal of such judgment of dismissal.
For its title to the cause of action set forth in the complaint appellant relies upon sec. 2394 — 25, Stats., which provides:
“The making of a lawful claim against an employer or compensation insurer for compensation under sections [524]*5242394 — 3 to 2394 — 31, inclusive, for the injury or death of an employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death; and such employer or insurer may enforce in their own name or names the liability of such other party for their benefit as their interests may appear.”
No doubt this statute operates as an assignment of any cause of action that the employer may have against a third party where the employee is the applicant for compensation. It is equally clear that it operates as an assignment of any cause of action existing by virtue of the statutes of this state in favor of the personal representatives of the employee to recover damages for his death where such personal representatives are applicants for compensation. Where the employee is the applicant the law which entitles him to compensation requires as a condition thereof that such claim be assigned, and when he applies for compensation he consents to the assignment. Then, too, under our prior ruling in this case, the compensation law enters into and becomes a part of the contract of employment between the employer and employee where both are under the act> “not as a covenant thereof but to the extent that the law of the land is a part of every contract.” It is a part of the contract of employment, therefore, that in case of injury the employee shall be compensated according to the provisions of the compensation act, which provides that any claim the employer may have for damages against third persons stands assigned to the employer upon his paying compensation.
But it is obvious that the employee cannot by contract, in his lifetime, assign a cause.of action which the law creates in favor of his dependents, his personal representatives, or his estate to recover damages on account of his death by wrongful act. That is a cause of action created not for his benefit but for the benefit of those who' survive him. He has no interest therein during his lifetime. It does not [525]*525accrue until his death. Manifestly he cannot assign that cause of action to any one, for the simple reason that he has no interest therein. But as the compensation act becomes a part of his contract of employment, the liability of the employer is fixed by the terms of that act, as held in the prior decision of this case.
Sec. 4255, Stats., gives rise to a cause of action in favor of the persons therein mentioned for the recovery of damages where death results from the wrongful act of another. Where an employee comes to his death through the wrongful act of his employer, sec. 4255 must be read in connection with the provisions of the workmen’s compensation act. That act modifies the provisions of sec. 4255 so far as the liability of an employer for the death of his employee is concerned. Where the relation of employer and employee exists, the personal representatives of the deceased, or his dependents, are to be compensated not under sec. 4255 but by virtue of the compensation act. This is because the legislature, which gave rise to the cause of action created by sec. 4255, having full power to change, alter, or repeal the same, has seen fit to provide that the liability of an employer for the death of his employee shall be of a different nature, and that when the employer pays the compensation required by the terms of the compensation act the cause of action created by sec. 4255 against a third party shall be assigned to him as a matter of law.
There is no difficulty in arriving at this conclusion where the cause of action against the third party arises under and by virtue of the statutes of .this state. That cause of action is at all times under the control of the legislature .of this state, which body may provide a different remedy under certain conditions, and provide that when the employer pays compensation the cause of action which the personal representatives of the deceased had against a third party shall stand assigned to the employer.
[526]*526But we have a different situation where the cause of action against such third party arises by virtue of a statute of a sister state. The cause of action against Herman Miller is based on a statute of the state of Michigan. Now the question is, How does the Miller Scrap Iron Company acquire the right which the statute of the state of Michigan vests in the administratrix of the estate of Boncher to that cause of action? Manifestly such a transition of title cannot be attributed to any act of Boncher during his lifetime, because, as already pointed out, he had no title thereto and was impotent to convey title to any one else. The legislature of this state is powerless to modify that cause of action as between an employer and the personal representatives of an employee, as it plainly may do. where the cause of action is created by the laws of this state. The liability of Herf man Miller is created by the Michigan statute. The. liability is in favor of the Boncher estate. The proceeds belong to the estate. They do not belong exclusively to the widow, or to those defined as dependents by our compensation act. To recognize the right of the legislature of this state to say that certain conditions shall operate as an assignment of ■that cause of action, or that it shall inure to the benefit of ■jany. except those specified by the law of Michigan, is to «ascribe to the legislature of this state extraterritorial power. To apply the provisions of the workmen’s compensation act to the present cause of action is to take away from some of the beneficiaries of that cause of action the benefits thereof and confer them upon another. Neither the legislature nor the courts of this state have power to interfere with a.cause of action created by the laws of a sister state. It is very plain that the Miller Scrap Iron Company derives no title to the cause of action set up in the complaint, by virtue of the laws of this state, and that the section of the statute heretofore quoted, while effectual to transfer to the employer a cause of , action arising under the laws of [527]*527this state, is not effectual for that purpose where the cause of action arises by virtue of a statute of a sister state.
It is equally clear, for reasons stated in our opinion in Miller Scrap Iron Co. v. Boncher, 173 Wis. 257, 180 N. W.
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The following opinion was filed May 3, 1921:
Owen, J.
After the decision in this case, reported in 169 Wis. 106, 170 N. W. 275, 171 N. W. 935, the widow, Mrs. Boncher, made application for compensation under the provisions of the workmen’s compensation act. The industrial commission made an award in her favor, which award was affirmed by this court in Miller Scrap Iron Co. v. Boncher, 173 Wis. 257, 180 N. W. 826. The Miller Scrap Iron Company claims that it has acquired this cause of action and is entitled to continue the prosecution thereof against Herman Miller; that it was aggrieved by the dismissal of the action as to Herman Miller by the lower court, and brings this appeal to secure a reversal of such judgment of dismissal.
For its title to the cause of action set forth in the complaint appellant relies upon sec. 2394 — 25, Stats., which provides:
“The making of a lawful claim against an employer or compensation insurer for compensation under sections [524]*5242394 — 3 to 2394 — 31, inclusive, for the injury or death of an employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death; and such employer or insurer may enforce in their own name or names the liability of such other party for their benefit as their interests may appear.”
No doubt this statute operates as an assignment of any cause of action that the employer may have against a third party where the employee is the applicant for compensation. It is equally clear that it operates as an assignment of any cause of action existing by virtue of the statutes of this state in favor of the personal representatives of the employee to recover damages for his death where such personal representatives are applicants for compensation. Where the employee is the applicant the law which entitles him to compensation requires as a condition thereof that such claim be assigned, and when he applies for compensation he consents to the assignment. Then, too, under our prior ruling in this case, the compensation law enters into and becomes a part of the contract of employment between the employer and employee where both are under the act> “not as a covenant thereof but to the extent that the law of the land is a part of every contract.” It is a part of the contract of employment, therefore, that in case of injury the employee shall be compensated according to the provisions of the compensation act, which provides that any claim the employer may have for damages against third persons stands assigned to the employer upon his paying compensation.
But it is obvious that the employee cannot by contract, in his lifetime, assign a cause.of action which the law creates in favor of his dependents, his personal representatives, or his estate to recover damages on account of his death by wrongful act. That is a cause of action created not for his benefit but for the benefit of those who' survive him. He has no interest therein during his lifetime. It does not [525]*525accrue until his death. Manifestly he cannot assign that cause of action to any one, for the simple reason that he has no interest therein. But as the compensation act becomes a part of his contract of employment, the liability of the employer is fixed by the terms of that act, as held in the prior decision of this case.
Sec. 4255, Stats., gives rise to a cause of action in favor of the persons therein mentioned for the recovery of damages where death results from the wrongful act of another. Where an employee comes to his death through the wrongful act of his employer, sec. 4255 must be read in connection with the provisions of the workmen’s compensation act. That act modifies the provisions of sec. 4255 so far as the liability of an employer for the death of his employee is concerned. Where the relation of employer and employee exists, the personal representatives of the deceased, or his dependents, are to be compensated not under sec. 4255 but by virtue of the compensation act. This is because the legislature, which gave rise to the cause of action created by sec. 4255, having full power to change, alter, or repeal the same, has seen fit to provide that the liability of an employer for the death of his employee shall be of a different nature, and that when the employer pays the compensation required by the terms of the compensation act the cause of action created by sec. 4255 against a third party shall be assigned to him as a matter of law.
There is no difficulty in arriving at this conclusion where the cause of action against the third party arises under and by virtue of the statutes of .this state. That cause of action is at all times under the control of the legislature .of this state, which body may provide a different remedy under certain conditions, and provide that when the employer pays compensation the cause of action which the personal representatives of the deceased had against a third party shall stand assigned to the employer.
[526]*526But we have a different situation where the cause of action against such third party arises by virtue of a statute of a sister state. The cause of action against Herman Miller is based on a statute of the state of Michigan. Now the question is, How does the Miller Scrap Iron Company acquire the right which the statute of the state of Michigan vests in the administratrix of the estate of Boncher to that cause of action? Manifestly such a transition of title cannot be attributed to any act of Boncher during his lifetime, because, as already pointed out, he had no title thereto and was impotent to convey title to any one else. The legislature of this state is powerless to modify that cause of action as between an employer and the personal representatives of an employee, as it plainly may do. where the cause of action is created by the laws of this state. The liability of Herf man Miller is created by the Michigan statute. The. liability is in favor of the Boncher estate. The proceeds belong to the estate. They do not belong exclusively to the widow, or to those defined as dependents by our compensation act. To recognize the right of the legislature of this state to say that certain conditions shall operate as an assignment of ■that cause of action, or that it shall inure to the benefit of ■jany. except those specified by the law of Michigan, is to «ascribe to the legislature of this state extraterritorial power. To apply the provisions of the workmen’s compensation act to the present cause of action is to take away from some of the beneficiaries of that cause of action the benefits thereof and confer them upon another. Neither the legislature nor the courts of this state have power to interfere with a.cause of action created by the laws of a sister state. It is very plain that the Miller Scrap Iron Company derives no title to the cause of action set up in the complaint, by virtue of the laws of this state, and that the section of the statute heretofore quoted, while effectual to transfer to the employer a cause of , action arising under the laws of [527]*527this state, is not effectual for that purpose where the cause of action arises by virtue of a statute of a sister state.
It is equally clear, for reasons stated in our opinion in Miller Scrap Iron Co. v. Boncher, 173 Wis. 257, 180 N. W. 826, that the application for compensation made by the widow cannot operate as an assignment of the cause of action, for the simple reason that she does not own the same. For the very reason that the prosecution of the action by the administratrix could not be held to constitute a waiver of compensation on the part of the widow, as was pointed out in that case, it must be held that the widow’s application for. compensation does not amount to an assignment of that cause of action. As she does not own the cause of action she is powerless to malee an assignment thereof. Much less can an assignment result as a matter of law from any act or conduct on her part.
From these considerations it results that the Miller Scrap Iron Company has acquired no title to the cause of action existing under and by virtue of the Michigan statutes. That is the cause ctf action, and the only cause of action, set forth in the complaint in this case. The Miller Scrap Iron Company, therefore, is in nowise concerned with the disposition of the case made by the lower court. The only one preju-dicially affected by that judgment is the plaintiff, the ad-ministratrix of the estate, and she has not • appealed. As the appellant has no interest in the cause of action set forth in the complaint, and is not affected by the judgment dismissing the action as to Herman Miller, it is unnecessary for us to- consider whether the action of the lower court was consistent with the mandate of this court on the former appeal. That question could be raised only upon the appeal of the administratrix, who has apparently acquiesced in the trial court’s disposition of the case.
In view of the- fact, however, that the Miller Scrap Iron Company may have some further remedy against Herman [528]*528Miller in the nature of indemnity or otherwise, we think that should it see fit to institute proceedings to enforce any right it may have against Herman Miller it should not be embarrassed in the prosecution thereof by questions which may be raised concerning the effect of the judgment entered herein as it relates to other causes of action which the Miller Scrap Iron Company may have against Herman Miller. We think, therefore, the judgment should be modified so as to- indicate plainly that as between the Miller Scrap Iron Company and Herman Miller the action is dismissed without prejudice to the rights of the Miller Scrap Iron Company.
By the Court. — The judgment is modified so as to read as follows: It is ordered and adjudged that the above entitled action be and the same is hereby dismissed on its merits as to the defendant Miller Scrap Iron Company. As to the defendant Herman Miller it is dismissed on its merits so far as the plaintiff is concerned and without prejudice so far as the Miller Scrap Iron Company is concerned. As so modified the judgment is affirmed. '
Eschweiler, J., dissents.
On October 26, 1921, the following order was made:
A 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 an 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 re[529]*529spondent’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?
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 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 cause was reargued on December 16, 1921, and the following opinions were filed April 11, 1922: