ON REHEARING
*577Clifford B. Olson, Portland, for the petition.On Appellant’s Petition por a Behearing
ROSSMAN, J.The plaintiff-appellant has filed a petition for a rehearing in which she complains, in part, because our opinion did not mention Bandy v. Norris, Beggs and Simpson, 222 Or 1, 342 P2d 839, 351 P2d 445, which her brief had cited. The plaintiff contends that the Bandy case requires a holding that the order entered by the defendant commissioner April 18, 1957, and which ordered the payment to the plaintiff of workmen’s compensation was an adjudication under the doctrine of res judicata to the effect that the plaintiff’s employer, Conrad E. Grates, was engaged in a hazardous occupation at the time of her injury. In writing our opinion we thought that the facts and the issues of the Bandy case were sufficiently unlike those of the one awaiting decision that a review of it was not called for.
In the case now before us the defendant (Industrial Accident Commission) after paying the plaintiff $4,-689.90 under a belief that her employer (Conrad E. Grates) was subject to the Workmen’s Compensation *578Act vacated and annulled the order of compensation when it discovered that Gates was not engaged in a hazardous employment and had not voluntarily embraced the act. From the action of the commission in so doing the plaintiff appealed to the circuit court, and from the action of that body appealed to this court. Our previous decision accepted as the fulcrum of the ease ORS 656.278 which confers upon the defendant commission continuing jurisdiction over its “orders or awards” together with power to “modify, change or terminate” them.
The Bandy case which the plaintiff cites was not under the Workmen’s Compensation Act; it was an action based upon the Oregon Employers’ Liability Law. The plaintiff had been injured while employed as elevator operator in the Central Building in Portland. In her action at law she named as defendant a firm entitled Norris, Beggs and 'Simpson and averred that it was her employer. That firm managed the Central Building as the agents of the estate of Rose White, deceased, owner of the structure. The action at law which resulted in a verdict for the plaintiff was preceded by a claim, filed 'by her with the Industrial Accident Commission in which she named as her employer the estate of Rose White, deceased. The estate was a contributor to the Industrial Accident Fund and was subject to the Workmen’s Compensation Act. The claim was allowed and paid before the plaintiff instituted her action against Norris, Beggs and Simpson. The order which allowed the claim and directed payment thereof was never questioned or vacated.
Before going on we take note of a distinction which we deem germane between the case at bar and the Bandy case. In the case at bar the plaintiff selected as the subject matter of her plea of res judicata the *579order of April 18, 1957, which the defendant commission had, however, vacated. She challenged the order which vacated it through the appeal which brought this case to this court. In the Bandy case the order which the defendant commission had entered and which ruled that the plaintiff (Mrs. Bandy) was the employee of the estate of Rose White, deceased, was still in full force and effect when she instituted her action at law which named as her employer Norris, Beggs and Simpson. In fact, that order has never been questioned or vacated.
In the Bandy case the defendants, Norris, Beggs and Simpson, filed an answer which averred that the estate of Rose White, deceased, and not the answering defendants, was the plaintiff’s employer at the time of her injury. It further alleged that both Mrs. Bandy and tire estate of Rose White, deceased were subject to the Workmen’s Compensation Act. In addition it set up that Mrs. Bandy had filed a claim for compensation with the Industrial Accident Commission and that the commission had paid her the amount of her cl aim. Upon Mrs. Bandy’s (claimant’s) motion the answer just summarized was stricken.
The decision of the Bandy case brought forth four opinions. One was the majority opinion and another was a specially concurring opinion written by Mr. Justice Lusk. Both held that the answer just mentioned should not have been stricken. The other two opinions were not concerned with the issues now before us, although one of them was a dissenting opinion.
We mention once more that in the case at bar the order which granted compensation and upon which the plaintiff depends was vacated and that from the order which expunged it from the commission’s files the plaintiff prosecuted the appeal which is now pending *580before us. We have pointed out that the order was vacated when the defendant commission discovered that the plaintiff’s employer was not engaged in a hazardous occupation, that he had not elected to submit himself to the Workmen’s Compensation Act and was not a contributor to the Industrial Accident Fund.
Our previous opinion took note that the appeal from the Industrial Accident Commission to the circuit court was authorized by ORS 656.288(2). A ruling by an administrative quasi-judicial body which is subjected by statute to review in the circuit court can not be preserved from' review through invoking in its favor some strange or novel phase of the doctrine of res judicata. Yet the plaintiff seems to believe that the order which the defendant commission made April 18,1957, somehow took its place in an area which is off limits for the courts and that the order must not be judicially molested. She is, of course, wrong. We think that in lieu of considering the doctrine of res judicata we must give attention to ORS 656.278 from which we previously quoted in part and which we will presently set forth in full.
In the Bandy case the order of compensation, as we have pointed out, was never vacated. In fact, no one ever sought its vacation. The money was paid to Mrs. Bandy and she kept it. The majority opinion in the Bandy case said, “We assume that it will not be necessary to cite authority to the effect that the Commission not only has. the power, but the duty, to determine in the first instance, the right to compensation.” The commission performed that duty and in so doing entered an order which declared that Mrs. Bandy was the employee of the estate of Rose White, deceased. The order, as we have said, was never vacated.
*581We will now take note of the parts of the Bandy opinion which the plaintiff cites.
The majority opinion in the Bandy case, after citing an annotation in 122 ALB, 550, stated:
“We think the decisions there noted are to the effect that once the finding as to the employer and employee relationship is made by the tribunal intrusted with that duty, the decision is final and conclusive until set aside.”
We pause on the words “final and conclusive until set aside.” It will be recalled that our opinion in the case now at bar quoted the part of OES 656.278 which states:
“The power and jurisdiction of the Commission shall be continuing, and it may, upon its own motion, from time to time modify, change or terminate its former findings, orders or awards if in its opinion such action is justified.”
The purpose of the section of our laws just quoted is to enable the commission to act with expedition in eases which call for prompt help with the knowledge that if subsequent investigation discloses that its earlier action was ill advised it may change its course.
We are aware of nothing stated in our previously announced opinion in the case at bar which is at variance with the sentence that we just quoted from the prevailing opinion in the Bandy case.
The plaintiff, in citing the Bandy case, depends principally upon the specially concurring opinion which Mr. Justice Lusk wrote in that case. His opinion held that the controlling issue was whether “the plaintiff is precluded from maintaining this action for damages under the Employer’s Liability Law by the fact that she applied for and received an. award of compensation *582for the identical personal injury under the Workmen’s Compensation Law.” Justice Lusk’s opinion took note of the fact that the plaintiff did not claim that she was within any of the exceptions set forth in the act that enabled an injured employee to sue someone other than his employer. ORS 656.312 and 656.154. It added:
“* * * Her position from the beginning was, and still is, that she can avoid the provision of ORS 656.152(2) against double recovery by giving back the money she received from the Commission. # # #33
The specially concurring opinion then continued:
a* * # But that section provides that: ‘The right to receive such sums is in lieu of all claims,’ * # * 33
Thus, that case presented the situation that the plaintiff had sought and had received an award of compensation. As long as the order of award remained unexpunged the plaintiff was entitled to keep the money and the commission could not accept its return.
The part of Justice Lusk’s opinion that the plaintiff especially relies upon reads as follows:
“A decision of the State Industrial Accident Commission awarding compensation to a workman for disability carries with it, of necessity, findings of the commission that the workman sustained personal injury while employed by an employer subject to the Act, and that such disability was the result of injury by accident arising out of and in the course of such employment. Unless these conditions are present, the Commission is without jurisdiction to make an award. * * *
# # #
“* * * While it is not res judicata in the technical sense, for the defendant was not a party to the *583proceeding before tbe Commission, it does, as I view it, have tbe force of a judgment for tbe purposes of the present ease. It establishes the fact that plaintiff was the employee of an employer under the Workmen’s Compensation Law, who was awarded compensation for an injury. * * *”
The reasoning just quoted is not at variance with anything which we have said in this case. In the Bandy ease, when Justice Lusk spoke, the commission’s order was in full effect. It had not been vacated or expunged by the commission or any court. Accordingly, as the quoted words say, “It establishes the fact that plaintiff was the employee of an employer under the Workmen’s Compensation Law, who was awarded compensation for all injury.” But in the case now before us the order of the commission which at one time recognized the aforementioned Conrad E. Gates as subject to the Workmen’s Compensation Act was expunged from the defendant’s file when it was discovered that its recital was in error.
The Bandy case and the one now at bar are unlike. In both cases the commission had the right, conferred upon it by ORS 656.278, to vacate the order of compensation which it had previously entered. In the case at bar the commission exercised that power and vacated its order. The facts which prompted its action surely can not be deemed lacking in merit.
In the case at bar which obviously is not controlled by the doctrine of res judicata but by ORS 656.278, the commission’s order which had recognized the plaintiff’s employer as subject to the Workmen’s Compensation Act had been vacated before this appeal was filed. ORS 656.278 plainly authorized the defendant commission to take the very course which it had pursued.
*584We do not believe that defendant’s orders entered under OES 656.278 (1) constitute res judicata. Nor do we believe that our previous decision contains any error.
The petition for a rehearing is denied.