
    Schafer and others, Appellants, vs. Industrial Commission of Wisconsin and another, Respondents.
    
      September 17
    
    October 12, 1926.
    
    
      Appeal and error: Affirmance by divided court.
    
    Where the Justices of this court are equally divided in opinion on the question involved in an appeal, the judgment appealed from will be affirmed.
    
      Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.
    
      Affirmed.
    
    This is an appeal by the plaintiffs from a judgment affirming the award of the -Industrial Commission.
    
    There is no substantial dispute on the facts in this case except as to the deductions that should be drawn from such .facts.
    The .deceased, A. F. Varney, was a carpenter employed by the appellant Schafer & Olson, and while in the course of his employment received injuries resulting in a broken leg. ■ The. fracture was reduced but the result was unsatisfactory, so that a couple of week's later an operation was performed and plates were ápplied to hold the broken bones in place. Some three weeks later the plates were removed under anaesthetic and a plaster cast applied. Two weeks thereafter the deceased developed symptoms of smallpox. All this time deceased was confined in bed in the hospital. He was immediately taken to his home and cared for by his wife, but death from smallpox resultéd a short time thereafter. There .was .testimony by the physician in charge that the deceased’s death was partially' induced by his' lowered vitality owing to his previous accident and the complications resulting therefrom. The Industrial Commission found for the claimant, Carrie Varney, and -the plaintiffs brought an action in the circuit court to review the award entered by the Commission■: The circuit court affirmed the award of the Indtistrial Commission, from which this appeal was taken.
    For the appellants there was a brief by Stephens, Slette-land & Sutherland, attorneys, and Bagley, Spohn & Ross, of counsel, all of Madison, and oral argument by Robert J. Sutherland and William H. Spohn.
    
    For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
    
   Crownhart, J.

Mr. Justice Stevens presided at the trial of this case in the circuit court. Pie therefore did not participate in the consideration and decision of the case in this court. The members of the court participating are equally divided in opinion upon the question involved on this appeal. Mr. Justice Rosenberry, Mr. Justice Esch-weiler, and Mr. Justice Owen are of the opinion that the judgment appealed from should be reversed. Mr. Chief Justice Vinje, Mr. Justice Doerfler, and the writer are of the opinion that the judgment should be affirmed. Under the established rule it follows that the judgment appealed from is affirmed. Fox River Paper Co. v. Railroad Comm. 189 Wis. 626, 208 N. W. 266.

By the Court. — Judgment affirmed.  