fore, by his fellow laborer and the district manager, amounted to nothing more than a suggestion on their part that he ought to see a doctor. It goes without saying that their opinion in this respect was no better than that of the deceased. He was in a position to judge of the necessity of consulting a doctor as well as they, and perhaps better.

[3] The second answer to the contention made by appellants is the one made by the circuit court, and that is that it is not at all plain from the record that, if he had consulted a physician, his life would have been saved. Upon the hearing before the Industrial Commission Dr. Wetzler, the company's physician, was asked this question:

"If an infection of that kind has started in a day or two after an accident of that kind, and the man had obtained medical treatment, it would not be difficult to clean up an infection, would it? A. Well, I won't say.. Sometimes even with early treatment a severe type of streptococcic infection will prove fatal in spite of treatment, but those infections then develop almost immediately after the onset of the injury."

In view of this evidence it may be said, as the learned circuit judge said in deciding the case, that

"No one can say with the certainty that is essential in order to set aside a finding of the Industrial Commission that the injured workman increased his disability or met his death because of his failure to secure medical treatment at an earlier date."

Judgment affirmed.

SUPREME COURT OF WISCONSIN.

PAWLING & HARNISCHFEGER CO et al.

MILDENBERGER ET AL.*

1. MASTER AND SERVANT-FINDING ON CONFLICTING EVIDENCE BY INDUSTRIAL COMMISSION CONCLUSIVE. A determination of fact by the Industrial Commission on conflicting evidence is conclusive upon the courts, under St. 1917, § 2394-19. (For other cases, see Master and Servant, Dec. Dig. § 417 [7].)

2. MASTER AND SERVANT-AWARD BY INDUSTRIAL COM

MISSION SUSTAINED BY EVIDENCE.

An award of compensation by the Industrial Commission for a permanent partial disability equivalent to total blindness of an eye held sustained by the evidence.

(For other cases, See Master and Servant, Dec. Dig. § 405 [4].)

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge. Proceedings by August Mildenberger, under the Workmen's Comthe Pawling & Harnischfeger Company, the employer, and the Workpensation Law, to obtain compensation for personal injuries; opposed by men's Compensation Mutual Liability Insurance Company.

*(Decision rendered, Nov 4, 1919.

174 N. W. Rep. 455.

There was

an award of compensation by the Industrial Commission, which was confirmed by the circuit court, and the employer and the insurance company appeal. Affirmed.

This action was brought by plaintiff to set aside an award of the of the Industrial Commission of Wisconsin.

The findings of the commission are, in substance, that both applicant and respondent were subject to the provisions of section 2394-3 to 239431, inclusive; that on September 18, 1917, August Mildenberger, while in the employ of plaintiff and in the performance of duties incident to and growing out of his employment, sustained injuries that resulted in permanent partial disability, or total blindness of the left eye. commission awarded Mildenberger the sum of $1,209.04.

The

Plaintiff contends that prior to the accident injury which resulted in total blindness of Mildenberger's left eye the sight of that eye was not to exceed 27 per cent. of normal sight, and that Mildenberger for that reason is entitled to an award not to exceed 27 per cent. of the 140 weeks allowed by the schedule for total blindness of one eye.

The circuit court confirmed the award of the Industrial Commission, and judgment was entered accordingly. This is an appeal from such judgment.

Roehr & Steinmetz, of Milwaukee, for appellants.

Benj. W. Reynolds, of Milwaukee (F. P. Hopkins, of Milwaukee, of counsel), for respondent.

John J. Blaine, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for Industrial Commission.

SIEBECKER, J. (after stating the facts as above). [1] The plaintiff claims that the commission erred in awarding compensation to the applicant for a permanent partial disability equivalent to a total blindness of an eye. The applicant testified to the effect that the injured eye was "all right" before the accident, that he could see all right, and could read with it before the accident. Two doctors testified that the vision of the applicant's left eye for practical use was wholly destroyed by the accident, but that in their opinion in view of all the facts shown regarding the condition of applicant's eye, he had, prior to the accident, about 27 per cent. normal vision in his left eye. The commission in its determination of the issue of facts presented by the evidence declared:

"With all due respect for the opinion of experts, there was no direct evidence that the applicant's eye was not normal befor the accident. Against this (doctors') opinion, we have the applicant's own testimony to the effect that prior to the accidental injury his left eye was all right. At any rate, the applicant had useful vision in said eye before it was injured. For all practical purposes to him the left eye was performing the functions of a normal eye."

This evidence sustains these conclusions of the commission. The circuit court properly held that this determination of fact by the commission in the light of the evidence is conclusive upon the counts under section 2394-19, Stats. International Harvester Co. v. Industrial Com'n, 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330; Borgins v. Falk Co., 147 Wis. 359-361, 133 N. W. 209, 37 L. R. A. (N. S.) 489.

[2] It necessarily follows from this that the award of the commission is sustained by the evidence, and cannot be set aside by the courts. Under these circumstances we deem it proper to rest affirmance of the award on this ground and omit consideration of other grounds covered by argument of counsel.

The judgment appealed from is affirmed.

SUPREME COURT OF WISCONSIN.

SMITH
V.

INDUSTRIAL COMMISSION ET AL.*

1. MASTER AND SERVANT-DETERMINATION BY INDUSTRIAL COMMISSION WHETHER WIDOW AND EMPLOYEE LIVED TOGETHER.

Whether claimant widow and the deceased employee were living together at the time of injury within Workmen's Compensation Act St. 1917, § 2394-10, is a question of fact for the Industrial Commission, where conflicting inferences can be drawn from the evidence.

(For other cases, see Master and Servant, Dec. Dig. § 417 [7].)

2. MASTER AND SERVANT-WIDOW AND SERVANT NOT LIVING TOGETHER.

Testimony tending to show there was an actual separation in the nature of the estrangement between a widow, claimant under the Workmen's Compensation Act, and the deceased employee. for more than a year and a half prior to the fatal accident, held sufficient to support the finding of the Industrial Commission that the parties were not living together within St. 1917, § 2394—10.

(For other cases, see Master tnd Servant, Dec. Dig. § 405 [5].)

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge. Proceedings under the Workmen's Compensation Act by Sophia Smith, as the widow of Solomon Smith, the employee, opposed by Scheidegger Bros., the employer. Application was dismissed, and claimant sues to set aside the award of the Industrial Commission. judgment for the Commission, claimant appeals. Affirmed.

From

Action to set aside an award of the Industrial Commission. The plaintiff filed a claim before the commission, as the widow of one Solomon Smith, against Scheidegger Bros., a logging firm, on account of the death of said Smith as the result of injuries received by him while at work for said firm in the woods as a lumberjack. The injury to Smith and his death as a result thereof were admitted, but it was claimed: (1) That the plaintiff was not the wife of Smith' because she had a previous husband still living, from whom she had never been divorced; and (2) that the plaintiff was not living with Smith as required by section 2394-10, Stats. Wis., and hence was not dependent upon him for support. The commission did not decide the first contention, but held against the claimant on the second contention, and dismissed the application. The evidence showed that the plaintiff married one Munson nearly 20 years ago, by whom she had nine children, five or six of them feebleminded; that Munson left her in the spring of 1909 and never returned; that in May, 1912, she claimed to have read in a Rhinelander newspaper that Munson had died in Dakota; that nothing further was heard from Munson, and that in May, 1912, the plaintiff and Smith were in form married, and lived together on a farm belonging to Smith until April, 1916, when he went away from her. Regarding this parting the plaintiff testified "Smith did not like my children, and said he wouldn't

*Decision rendered, November 4, 1919. 174 N. W. Rep. 462.

take care of them, so he went away in April, 1916, and returned at Thanksgiving time, 1916." He stayed but three days at Thanksgiving time, and then went back to the woods to work and never returned. His injury was received November 24, 1917, and his death occurred Janu-ary 20, 1918. The plaintiff did not see her husband after November, 1916, until about a week before his death, when, hearing that he was sick, she went to the hospital where he was lying and remained until his death. Shortly after Smith visited the plaintiff in November, 1916, she left the farm and went to a neighboring village, and worked in a hotel for a short time, and later for a private family. The town helped to support her and her family in the summer of 1916. During the year and nine months of Smith's absence he contributed (according to the plaintiff's rather confused testimony) only $35 and some groceries at Thanksgiving time to her support. For eight or nine months prior to his death he contributed nothing, nor did he communicate with her or go to see her so far as the record shows, though he was working for a portion of the time near where she was living. The plaintiff claims that during the week before Smith's death, while he was lying ill in the hospital, they made plans to live together again in the spring. The trial court affirmed the order of the commission.

A. J. O'Melia, of Rhinelander, for appellant.

Brown, Pradt & Genrich, of Wausau, and John J. Blaine, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for respondents.

WINSLOW, C. J. (after stating the facts as above). [1, 2] It is plain that the judgment was right. It was a question of fact to be decided by the commission whether the claimant and the deceased were living together within the meaning of the law. Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877. In the present case there was ample testimony tending strongly to show that there was "an actual separation in the nature of an estrangement" for more than a year and a half prior to the accident. This was sufficient to support the finding that the parties were not living together. Northwestern Iron Co. v. Industrial Commission, Judgment affirmed.

supra.

SUPREME COURT OF WISCONSIN.

VILLAGE OF WEST SALEM

ບ.

INDUSTRIAL COMMISSION OF WISCONSIN ET AL.*

COURTS FORMER DECISION OF SUPREME COURT CON

TROLLING.

Where dismissal by Industrial Commission of application to make county a party to proceedings brought against village was on the ground that liability of village to petitioner for award was fixed by prior proceedings, and there was an affirmance of the judgment, and thereafter

* Decision rendered, November 4, 1919. 174 N. W. Rep. 453.

village brought proceeding before Industrial Commission to compel county to pay one-half of award which proceeding was dismissed, the former decision was binding under the doctrine of stare decisis, though judgment was not res judicata because of different parties.

(For other cases, see Courts, Dec. Dig. § 90[1].)

Appeal from Circuit Court, Dane County; E. Ray Stevens, judge. Proceedings by the Village of West Salem before the Industrial Commission to require the county of La Crosse to pay part of an amount previously awarded against the village on application of the widow of William Voeck. From a judgment of the circuit court affirming an order of the Industrial Commission dismissing the petition, the Village appeals. Affirmed.

Action to review order of the Industrial Commission. It appears that one William Voeck was engaged in assisting the marshal of the village of West Salem in an attempt to hold one Jones, then in the custody of Weingarten, a deputy sheriff of La Crosse county, under circumstances fully set out in West Salem v. Industrial Commission, 162 Wis. 57, 155 N. W. 929, L. R. A. 1918C, 1077. The widow of Voeck instituted a proceeding under the Workmen's Compensation Act (St. 1917, c. 110a), which was begun originally against the village of West Salem and La Crosse county. At the first hearing in some informal way La Crosse county, then appearing by its district attorney, was dropped from the proceeding, and does not further appear, except as hereafter stated. A proceeding before the Industrial Commission resulted in an award of $3,000 in favor of the widow. The village brought an action to review the award. The circuit court affirmed the award made by the Industrial Commission, except as to the amount. The village appealed from the judgment of the circuit court to this court and this court affirmed the judgment. After the return of the record to the Industrial Commission, and after some proceedings had been had before the Industrial Commission, the village filed a petition. asking that La Crosse county be made a party to the proceedings. The Industrial Commission denied the petition. The recitals in the order denying it are in part as follows: West Salem. "The application for death benefit was made against the village of Formal hearing was had, and award was entered on February 5, 1915, requiring the village of West Salem to pay to the apof the commission was reviewed by the circuit court of Dane county and the Supreme Court of Wisconsin, and the findings of the Industrial Commission as to all jurisdictional facts were upheld. The Industrial Commission erred only in the fixing of the wage upon which the death benefit was to be computed, and the proceedings were remanded to the commission with direction to determine the amount death benefit in accordance with the directions of the court. The liability of the village of West Salem became fixed, and as we view the matter no jurisdiction was left with the commission to find liability otherwise."

A final award was then made, and the village brought an action in the circuit court of Dane county to review the second award, including the refusal of the commission to make La Crosse county a party to the proceeding. The circuit court affirmed the action of the commission in refusing to make La Crosse county a party, and affirmed the award, and from the judgment of the circuit court the village appealed.

By stipulation of the parties the judgment of the circuit court was affirmed, without hearing, in the Supreme Court.

In August, 1917. the village began this proceeding before the Industrial Commission of Wisconsin against the county of La Crosse and asked that the county of La Crosse be required to answer the petition and required to pay the village one-half of the award.