that the court below had properly refused to assess attorneys' fees as a part of the award, saying:

The employers' liability act in its entirety is a summary proceeding. One of its objects is to facilitate an inexpensive and speedy settlement of controversies between employer and employee that arise out of personal injuries. It does not appear that the county attorney was requested to appear as counsel for claimant, or that he refused to appear. That such official would perform his duty in the premises when called upon to act in his official capacity is presumed.

For the error in regard to the physical examination, the case was reversed and remanded for a new trial.

On the new trial a judgment was again rendered in favor of the claimant, Wickline, and both parties appealed, the Supreme Court of Nebraska rendering its decision on July 16, 1919 (173 N. W. 689). The opinion reads in part:

Defendant's physician testified that she "thought an X-ray picture was a reasonable and a necessary thing," and that she had so advised defendant. A physician skilled in the art of making and reading X-ray photographs testified that in order to properly determine the extent and character of defendant's injury an X-ray photograph of the kidney ought to be made. He stated that in order to make a proper photograph it might be necessary to inject into the kidney an opaque solution called "colorogol," and described in detail the method of making this injection, stating:

"In the hands of an expert there is no danger whatever."

He further testified:

"That is a procedure that is not used so extensively as formerly because we are now able to X-ray the kidney without difficulty without injecting it."

He explained that he found it necessary to use this solution in a few cases. Defendant testified that if the court called upon her to have an X-ray picture taken, she would permit that to be done, but she would refuse to have colorogol injected into her kidney.

The district court found that the demand upon her was not reasonable, and that her refusal ought not to bar her from a recovery.

The district court was required (under our former opinion) to determine whether under the circumstances the request in this case was reasonable. It will be seen from the testimony of the expert produced by plaintiff that it is only in rare instances that it is necessary to inject this substance into the kidney, and it would seem that plaintiff ought to have availed itself of defendant's offer to submit to an X-ray examination without this injection. It may be that an injection was not necessary. We are constrained to hold, with the trial court, that the demand upon Mrs. Wickline was not reasonable.

By cross-appeal, counsel for defendant again asks us to tax an attorney fee against plaintiff. In the former opinion it was properly held that an attorney fee could not be taxed as part of the costs, and that holding is the law of the case. The statute was amended by the legislature of 1919 (Laws 1919, ch. 103), but the amendment is not applicable to this case.

The supreme court held that the lower court, in view of the facts before it, should have fixed the amount of compensation due to date. Its judgment was therefore modified by adding an award of the amount, and with this addition, the judgment was affirmed.

WORKMEN'S COMPENSATION-MEDICAL AND SURGICAL AID-SUBMISSION ΤΟ OPERATION PENALTY FOR REFUSAL-CONCURRENT AWARDS-O'Brien v. Albert A. Albrecht Co., Supreme Court of Michigan (May 29, 1919), 172 Northwestern Reporter, page 601.— O'Brien sustained injuries to his feet and ankles while working for the Bryant & Detwiler Co. in the capacity of a carpenter. He and the company entered into an agreement whereby he was to receive compensation in the amount of $9.45 per week, and later another agreement was made fixing the compensation at $7 per week: both agreements having been approved by the industrial accident board. Later O'Brien entered the employ of the Albrecht company and sustained another injury resulting in a hernia. The board allowed him compensation in the amount of $10 per week for total disability against the Albrecht company and failed to require him to submit to an operation to cure the hernia which the Albrecht company had tendered. In reversing the order of the board the court said, in part :

In the Jendrus case (Jendrus v. Detroit Steel Products Co., 178 Mich. 265, 144 N. W. 563) Mr. Justice Stone fully considers this question. It was a case of a major operation of a very serious character. The workman was an ignorant foreigner, who refused for some time to consent to the operation, but who finally did consent. Under all the circumstances of that case it was held that the refusal to consent to the operation was not an unreasonable one.

Applying then the rule announced by Lord McLaren and adopted by this court to the facts of the instant case, we are impressed that the plaintiff's refusal was unreasonable. The operation was not as serious a one as in the Jendrus case. Indeed the record discloses that it was not a serious case of hernia. The operation is not attended with danger to life or health, and could be performed by the use of either a general or local anesthetic. The doctors agree that it is advisable, and it is not disputed that it is the only thing that can be done to affect a cure. Until the plaintiff submits to an operation. which should be at the expense of the defendants, he is not entitled to compensation from them.

It will be noted from the above facts that O'Brien was already receiving $7 per week for partial disability from the Bryant & Detwiler Co. when he was granted the award of $10 per week for total disability against the Albrecht company. On this point the court said in part:

The maximum compensation for total disability fixed by the statute is $10 per week. (Section 5439, Comp. Laws 1915.) It must be obvious that a man can not be more than totally disabled. It should be equally obvious that he can not receive compensation for more than total disability Our statute does not provide for concurrent compensation. It fixes a maximum of $10 per week, and it can not exceed that sum, whether it is paid by one employer or several.

WORK MEN'S COMPENSATION-MINOR ILLEGALLY EMPLOYED-ACTION FOR DAMAGES NOT PERMITTED-Rasi v. Howard Mfg. Co., Supreme Court of Washington (Jan. 19, 1920), 187 Pacific Reporter, page 327.-The defendant was a manufacturer of woodenware in the city of Seattle and was under the workmen's compensation act. Hilda Rasi was a girl between 15 and 16 years of age who was employed by the defendant without a working certificate, which was contrary to the law. While so employed she lost four fingers of her left hand by getting them caught in the rollers of a machine on which she was working as an off-bearer. She brought suit at common law for damages for her injuries and recovered a judgment. Defendant appealed, claiming that the case came under the workmen's compensation act and that the present action should be dismissed. The court adopted this view, speaking in part as follows:

The appellant insists that the sole remedy of respondent is to be found in the terms of the workingmen's compensation act and that she has no redress by statute against her employer. This position must be sustained. The first section (Rem. Code, sec. 6604-1) of that act provides as follows:

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"The common law system governing the remedy of the workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. The State of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the State over such causes are hereby abolished, except as in this act provided."

If the respondent was a workman, within the meaning of this act, there can be no doubt that her sole redress must be found in the terms of the act. If she had been of the age of 16 years, there could be no reasonable contention that she did not come within the terms of the act.

Respondent's position seems to be that, because it was unlawful for appellant to employ the child under the age of 16 years, she was not confined for redress to the terms of the workingmen's compensation

act. Counsel rely principally upon the case of Hillestad v. Industrial Insurance Commission, 80 Wash. 426, 141 Pac. 913 [Bul. No. 169, p. 269]. We are satisfied that case is not authority for the position of the respondent here. Section 2447, Rem. Code, makes it a misdemeanor for an employer to employ "any male child under the age of 14 years or any female child under the age of 16 years at any labor" in any factory without the written permit of a judge of a superior court of the county wherein such child may live. This statute does not make it unlawful for a child under the prohibited age to work and imposes no penalty upon the child when it does work. It follows that the child neither gains nor loses any rights by such employment, even though the employer may be penalized.

The workmen's compensation act plainly recognizes that a child less than the maximum age for the employment of a minor is a workman within the meaning of that act. It follows that whether the child is employed either lawfully or unlawfully such child is entitled to all the privileges of the workingmen's compensation act and must seek its remedies under the terms of that act.

The judgment must therefore be reversed and the action dismissed.

WORKMEN'S COMPENSATION-MINOR ILLEGALLY EMPLOYED-ACTION FOR DAMAGES PERMITTED-New Albany Box & Basket Co. v. Davidson, Supreme Court of Indiana (Jan. 28, 1920), 125 Northeastern Reporter, page 904.-The New Albany Box & Basket Co. employed Davidson and put him to work to assist in the operation of a wood joiner. Davidson was a minor under 16 years of age, and was engaged by the company without the consent of his parents and without a work certificate. On the same day that he was employed, and while working at the wood joiner, his right hand came in contact with one of the knives of the machine and cut off his fingers. He brought suit for damages under the common law, and the company in defense pleaded the workmen's compensation act (Laws 1915, ch. 106), contending that the common-law action could not be maintained.

On appeal of the company the supreme court affirmed a judgment in favor of Davidson for $4,500. In rendering its opinion the court quoted statutes as to age certificates and the employment of children under 16 at designated dangerous employments. The appellant company admitted liability to penalties for violation of these laws but claimed their violation carried no further consequences. As to this the court said:

We can not agree with appellant that this is the extent of the application of the statute in the instant case. In Hetzel v. Wasson Piston Ring Co. (Court of Errors and Appeals of New Jersey), 89 N. J. Law, 201, 98 Atl. 306, it was held that the workmen's compensation act has no application to a child under 14 years of age employed in a workshop, factory, or mill or other place in violation

of a statute, and an action for injuries to such child, based upon the common-law.liability of the employer, may be maintained.

All decided cases which we have examined hold that employment when referred to in the workmen's compensation laws means lawful employment. We think that a fair construction of the Indiana workmen's compensation act requires us to hold that in enacting the law with reference to the rights and remedies of employers and employees the legislature referred to legal employment.

In the instant case the appellee was employed in direct violation of sections 8022 and 8022-e of the statutes (Burns, 1914), and, such being the case, the employment was illegal, and he is not embraced within the provisions of the workmen's compensation act, and his action was properly brought.

WORKMEN'S COMPENSATION-MINOR ILLEGALLY EMPLOYED-INSURANCE-Maryland Casualty Co. v. Industrial Accident Commission, Supreme Court of California (Feb. 11, 1919), 178 Pacific Reporter, page 858.-This action is a writ of review brought by the Maryland Casualty Co., which was the insurrer of Bronstein & Le Blanc, employers of Frank T. Sharon, a minor of the age of 15 years and 2 months, who was killed while in their employ, against the industrial accident commission to have an award by that body annulled. An agent of the casualty company induced Sharon's employers to agree to insure their workmen's compensation liabilities after calling their attention to the liabilities incurred in employing such young men as Sharon. The policy of insurance which was delivered after but with full knowledge of Sharon's injury and death contained a provision stating that it would cover "such injuries, including death, sustained by an employee legally employed." Bronstein & Le Blanc employed Sharon without his having issued to him and presented to them an age and schooling certificate as required by the childlabor law. The court in annulling the award of the commission in favor of the mother said in part:

Among other places in which employment is prohibited by the provisions of section 1 so referred to is "any manufacturing establishment or workshop," which would include the employment in which the decedent was engaged at the time of his death. It is therefore argued that even though the employment during the hours the schools were in session was illegal without an age and school certificate it was not illegal at the hour in question, for although the schools of the city were in session November 14 they had adjourned before 4.30, and that therefore the decedent was not working "during the hours that the public schools are in session." But the contract of employment was an entirety and required the decedent to work six days in a week during the whole day and while school was in session. The contract was therefore one prohibited by law, and the fact that decedent might have been legally employed after school 51706°-22- -29