(on rehearing). The foregoing opinion 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 *530recover 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 áction 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 tfie time he probably would have lived had he not been injured.” Olivier v. Houghton Co. St. R. Co. 134 Mich. 367, 96 N. W. 434.
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, *531but 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.
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. N. P. R. 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 during his lifetime, 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 sec. 2394 — 25, Stats. 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. *532Upon 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 administra-trix 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. Sec. 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.