Appellants have filed a petition for rehearing herein asserting: 1. That this court has erred in holding the defense of res judicata was not available to them; 2. That there was no such change in respondent's condition, after the summary and award of June 10, 1930, as is contemplated by Idaho Code Annotated, section 43-1407.
We do not believe the rule relative to res judicata, applicable to this case, can be more clearly stated than has been done by the late Justice Leeper in the opinion complained of.
This court does not desire to be understood as passing upon the question as to whether the Industrial Accident Board has jurisdiction to relieve parties from the consequences of such a mistake as appears to have occurred in this case, in the absence of a change in the condition of the claimant as contemplated by Idaho Code Annotated, section 43-1407. The decision is based upon the fact that subsequent to June 10, 1930, when the employer's supplemental report, concurred in by respondent, to the effect that he had recovered his earning capacity and returned to work was approved, a change in this condition occurred as contemplated by said section.
While it is apparent a mistake of fact was made in the employer's report, concurred in by respondent as aforesaid, in the petition to reopen the case, subsequently filed, a change in his condition was alleged. Testimony sufficient to sustain this allegation was introduced in support of it, and the board found: *Page 599
"That since the 10th day of June, 1930, claimant's disability as the result of said accident and injury has increased."
Upon that point the district court, reviewing the action of the board, found the same fact in the same language.
These findings justify the award by the board and the decree of the court affirming it. It is upon these facts so established and found that the decision of this court is based.
Petition for rehearing denied.
Budge, C.J., and Givens and Holden, JJ., concur.