Note by board-The defaulting employer can not avail himself of the "common law" defenses, which have been so effective in defeating personal injury claims heretofore, where the fact of the injury to his employé is not contested.

These defenses now abolished, commonly referred to as "contributory negligence," "assumption of risk," and "fellow servant rule," are:

1. That the employé was not, when injured, in the exercise of due care, or was guilty of contributory negligence;

2. That the injury received by the employé was one of the ordinary risks incident to the contract of employment;

3. That the injury was the result of the negligence of a fellow servant.

It will thus be seen that by the common-law rule the employé assumes all of the ordinary risks incident to his employment, and that his employer is only liable when he is guilty of negligence and the employé is wholly free from negligence and his injury was not caused by the negligence of a fellow servant.

Under this section employers who have not contributed to the state insurance fund are deprived of the common-law defenses, and it would seem that the only effective defense available in an action for damages for an alleged injury occurring to an employé in the course of his employment would be that no injury in fact had been sustained, or that the injury received was self-inflicted or that the employer was himself free from fault. The amount of the recovery should be determined by the "comparative negligence" of all parties. The injured employé once having exercised his option, the decision is final and may not be withdrawn.

Sec. 9. Employer's Responsibility for Safeguard.— If any workman shall be injured because of the absence of any safeguard or protection required to be provided or maintained by, or pursuant to, any statute or ordinance, or any departmental regulation under any statute, or be, at the time of the injury, of less than the maximum age prescribed by law for the employment of a minor in the occupation in which he shall be engaged when injured, the employer shall, within ten days after demand therefor by the department, pay into the accident fund, in addition to the same required by section 4 to be paid:

(a) In case the consequent payment to the work

man out of the accident fund be a lump sum, a sum equal to 50 per cent. of that amount.

(b) In case the consequent payment to the workman be payable in monthly payments, a sum equal to 50 per cent. of the lump value of such monthly payment, estimated in accordance with the rule stated in section 7.

Note by board-A boy under 14 years of age, or a girl under 16 years, may not be employed in dangerous trades without written permit from superior court. (Sec. 2447, Rem. and Bal. Code.) Children under 15 may not be so employed while school is in session. (Sec. 4715, Rem. and Bal. Code.)

See Sec. 30 herein. Sec. 2446, Rem. and Bal. Code ruled not applicable to factories.

The foregoing provisions of this act shall not apply to the employer if the absence of such guard or protection be due to the removal thereof by the injured workman himself or with his knowledge by any of his fellow workmen, unless such removal be by order or direction of the employer or superintendent or foreman of the employer, or any one placed by the employer in control or direction of such workman. If the removal of such guard or protection be by the workman himself or with his consent by any of his fellow workmen, unless done by order or direction of the employer or the superintendent or foreman of the employer, or any one placed by the employer in control, or direction of such workmen, the schedule of compensation provided in section 5 shall be reduced 10 per cent. for the individual case of such workman.

Sec. 10. Exemption of Awards.-No money paid or payable under this act out of the accident fund shall, prior to issuance and delivery of the warrant therefor, be capable of being assigned, charged, nor ever be taken in execution or attached or garnished, nor shall the same pass to any other person by operation of law. Any such assignment or charge shall be void.

Note by board-This section is necessary in order to protect the

injured employé and his dependents. If the claim were made assignable he could sell it for a small sum, and thus deprive his dependents of benefits to which they are entitled. The compensation also is made exempt from his debts on the same principle that wages now are made exempt. The justice and fairness of this should be conceded by all.

Sec. 11.

Non-Waiver of Act by Contract.-No employer or workman shall exempt himself from the burden or waive the benefits of this act by any contract, agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro tanto void.

Sec. 12. Filing Claim for Compensation.—(a) Where a workman is entitled to compensation under this act he shall file with the department, his application for such, together with the certificate of the physician. who attended him, and it shall be the duty of the physician to inform the injured workman of his rights under this act and to lend all necessary assistance in making this application for compensation and such proof of other matters as required by the rules of the department without charge to the workman.

Note by board-The physician's report is a duty to the state; no payment is allowed therefor. Charge for professional services rendered a workman is his personal debt, unless the employer contracted to pay the same. See Sec. 24, 4, 7.

(b) Where death results from injury the parties entitled to compensation under this act, or some one in their behalf, shall make application for the same to the department, which application must be accompanied with proof of death and proof of relationship showing the parties to be entitled to compensation under this act, certificates of attending physician, if any, and such other proof as required by the rules of the department.

(c) If change of circumstances warrant an increase or rearrangement of compensation, like application shall be made therefor. No increase or rearrangement shall be operative for any period prior to application therefor. (d) No application shall be valid or claim there

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under enforceable unless filed within one year after the day upon which the injury occurred or the right thereto accrued.

Note by board-All blanks necessary in the judgment of the department for the administration of the law are furnished free of cost to all employers and employés coming within the purview of the act.

Sec. 13. Medical Examination.-Any workman entitled to receive compensation under this act is required, if requested by the department, to submit himself for medical examination at a time and from time to time at a place reasonably convenient for the workman and as may be provided by the rules of the department. If the workman refuses to submit to any such examination, or obstructs the same, his rights to monthly payments shall be suspended until such examination has taken place, and no compensation shall be payable during or for account of such period.

Note by board-Refusal to submit to examination where a lump sum award is anticipated will be prima facie cause for rejection of claim which may be filed within the year.

Sec. 14. Notice of Accident.-Whenever any aecident occurs to any workman it shall be the duty of the employer to at once report such accident and the injury resulting therefrom to the department, and also to any local representative of the department. Such report shall state:

1. The time, cause and nature of the accident and injuries, and the probable duration of the injury resulting therefrom.

2. Whether the accident arose out of or in the course of the injured person's employment.

3. Any other matters the rules and regulations of the department may prescribe.

Note by board-"Every person who, after due notice, shall refuse or neglect to make or furnish any statement, report or information lawfully required of him by any public officer, or who, in

such statement, report or information shall make any wilfully untrue, misleading or exaggerated statement, or who shall wilfully hinder, delay or obstruct any public officer in the discharge of his official powers or duties, shall be guilty of a misdemeanor." Rem. and Bal. Code, Sec. 2672; Sec. 420, Chap. 249, Laws 1909.

Sec. 15. Inspection of Employer's Books.-The books, records and payrolls of the employer pertinent to the administration of this act shall always be open to inspection by the department or its traveling auditor, agent, or assistant, for the purpose of ascertaining the correctness of the payroll, the men employed, and such other information as may be necessary for the department and its management under this act. Refusal on the part of the employer to submit said books, records and payrolls for such inspection to any member of the commission, or any assistant presenting written authority from the commission, shall subject the offending employer to a penalty of one hundred dollars for each offense, to be collected by civil action in the name of the state and paid into the accident fund, and the individual who shall personally give such refusal shall be guilty of a misdemeanor.

Note by board.-Misdemeanor-Penalty, imprisonment in county jail not to exceed 90 days, or by a fine not to exceed $250.00. Rem. and Bal. Code, Sec. 2266; Sec. 14, Chap. 249, Laws 1909.

Sec. 16. Penalty for Misrepresentation as to Payroll. Any employer who shall misrepresent to the department the amount of payroll upon which the premium under this act is based shall be liable to the state in ten times the amount of the difference in premium paid and the amount the employer should have paid. The liability to the State under this section shall be enforced in a civil action in the name of the State. All sums collected under this section shall be paid into the accident fund.

Sec. 17. Public and Contract Work.-Whenever the State, county or any municipal corporation shall en