McDonald v. St. Paul Fire & Marine Insurance Co. , 283 Minn. 533 ( 1969 )

167 N.W.2d 723 (1969)

John D. McDONALD, Respondent,
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, Relator.

No. 41200.

Supreme Court of Minnesota.

April 25, 1969.

Meagher, Geer, Markham & Anderson, and Mary Jeanne Coyne and O. C. Adamson, II, Minneapolis, for relator.

George A. Kurtz, and Daniel B. Gallagher, St. Paul, for respondent.

UPON REARGUMENT

PER CURIAM.

Commissioner Laurence F. Koll was not a member of the Workmen's Compensation Commission at the time the commission heard this matter on the appeal from the referee's determination awarding compensation to the employee. The other members of the commission being equally divided, due to the vacancy on the commission, the referee's determination was affirmed.^[1] Since the commission did no actual factfinding because of the vacancy, this court in the interest of justice now remands the matter for reconsideration and a rehearing with full participation by the commission as now constituted.^[2]

This order is not intended to overrule Barlau v. Minneapolis-Moline P. I. Co., 214 Minn. 564, 9 N.W.2d 6, or Nelson v. Creamery Package Mfg. Co., 215 Minn. 25, 9 N.W.2d 320, wherein this court established the rule that where one of the members of the commission is incapacitated or disqualified and the others are equally divided in opinion on an appeal from a referee's decision awarding compensation, an affirmance of the referee's decision occurs by operation of law.

The opinion filed herein on December 27, 1968, is withdrawn and the foregoing is substituted in its place.

Remanded.

FRANK T. GALLAGHER, J., took no part in the consideration or decision of this case.

NOTES

[1] Cf. Erickson v. Bakke, 253 Minn. 577, 95 N.W.2d 656; Armstrong v. City of Rochester, 211 Minn. 613, 299 N.W. 683; 1B Dunnell, Dig. (3 ed.) § 290, and cases cited therein.

[2] See, Nierengarten v. State Dept. of Highways, 282 Minn. 231, 163 N.W.2d 862.