
    SPECIAL INDEMNITY FUND v. FRAPP et al.
    No. 32194.
    April 29, 1947.
    
      180 P. 2d 134.
    
    Mont R. Powell, and R. D. Lyons, both of Oklahoma City, for petitioner.
    Hatcher, Hatcher & Taylor, of Oklahoma City, and Mac Q. Williamson, Atty. Gen., for respondents.
   PER CURIAM.

On December 6, 1944, while engaged in a hazardous employment for Mohawk Drilling Company, W. T. Frapp sustained an accidental injury to the big toe on his left foot. He had previously lost portions of the middle fingers on each of his hands. The trial commissioner found that as a result of said accident he suffered a 40 per cent permanent disability to his toe and awarded him 12 weeks’ compensation therefor against his employer and its insurance carrier as provided in 85 O.S. 1941 § 22(3). The trial commissioner also found that he suffered a 5 per certt additional permanent disability to the body as a whole by reason of the combination of the toe and previous finger injuries, and awarded him 25 weeks’ compensation against the Special Indemnity Fund. On appeal to the State Industrial Commission en banc, four 'Commissioners only participated, and two voted to affirm the order of the trial commissioner and two dissented, the fifth member not participating. The employer and its insurance carrier do not question the 12 weeks’ award against him. The Special Indemnity Fund prosecutes this original proceeding to review the 25 weeks’ award against it.

While the parties agree that the result of the tie vote was to affirm the order of the trial commissioner, we cannot so treat it, and the award of the Industrial Commission must be vacated under the rule announced in Higgs v. State Industrial Commission, 197 Okla. 281, 170 P. 2d 240.

We call attention of the parties to the holding of this court in Special Indemnity Fund v. Davidson, 196 Okla. 118, 162 P. 2d 1016.

Award against the Special Indemnity Fund vacated.

HURST, C.J., DAVISON, V.C.J., and RILEY, OSBORN, CORN, GIBSON, and ARNOLD, JJ., concur.  