Schafer v. Varney

• Citation: 210 N.W. 359,191 Wis. 186
• Parties: SCHAFER & OLSON v. VARNEY ET AL.
• Decision Date: 12 October 1926
• Court: United States State Supreme Court of Wisconsin

191 Wis. 186

210 N.W. 359

SCHAFER & OLSON

v.VARNEY ET AL.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Proceeding under the Workmen's Compensation Act (St. 1923, §§ 102.01 to 102.41) by Carrie Varney, claimant for the death of A. F. Varney, opposed by Schafer & Olson, employer, and Builders' Mutual Casualty Company, insurer. Award of the Industrial Commission was affirmed by the circuit court, and the employer and insurer appeal. Affirmed by divided court.--[By Editorial Staff.]

This is an appeal by the plaintiff 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 weeks later an operation was performed and plates were applied to hold the broken bones in place. Some three weeks later the plates were removed under anæsthetic, 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 resulted 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 Industrial Commission, from which this appeal was taken.

Stephens, Sletteland & Sutherland, of Madison (Bagley, Spohn & Ross, of Madison, of counsel), for appellants.

Herman L. Ekern, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for respondents.

CROWNHART, J.

Mr. Justice Stevens presided at the trial of this case in the circuit court. He 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 ESCHWEILER, and Mr....