Jenkins v. Boise Payette Lumber Co. , 49 Idaho 24 ( 1930 )

The appellant Jenkins has moved for a rehearing on the ground that the cause should not have been remanded but that this court should have directed a judgment in his favor for compensation for 400 weeks' total disability, less 120 weeks, for which time he has been paid, or until such time as appellant is able to perform work, at the rate of $16 per week, with interest thereon as provided by 1921 Sess. Laws, sec. 6272A, p. 480.

The respondents urge that such action by this court should not be taken because the hearing before the board was merely upon the question of reopening the case and not upon the question of what award should have been made if there was a changed condition. The record shows that the board not only denied appellant's petition to reopen the case but notwithstanding such denial after full hearing found no right to further compensation. Both parties had full opportunity to present such testimony as they desired, and it appears that they had a complete hearing upon both questions. Therefore no good purpose would be served by remanding the cause for further proceedings. (Weidner v.Northway Motor Mfg. Co., 205 Mich. 583, 172 N.W. 574;Belleville Brick Tile Co. v. Industrial Com.,305 Ill. 577, 137 N.E. 401.) Thus determining both questions seems in line with C. S., sec. 6269.

The previous opinion is modified to this effect: "The judgment is reversed and the cause remanded with instructions to the district court to enter judgment in favor of appellant Jenkins for compensation at the rate of $16 per week for 400 weeks, less 128 weeks, interest to be paid thereon in conformity with 1921 Sess. Laws, sec. 6272A, p. 480."

Appellant's petition for rehearing is denied.

Budge, Lee, Varian and McNaughton, JJ., concur.