June 8, 1920, was an application within the meaning of the Compensation Act and that it should be so regarded, and the commission agreed with this position. If this letter is sufficient as an application, the objection of petitioners that the claim is barred is without merit.

Section 17 of the Compensation Act, as amended in 1919, provides that: "Upon the filing with the commission by any party in interest, his attorney, or other representative authorized in writing, of an application in writing stating the general nature of any dispute or controversy concerning compensation, or concerning any right or liability arising out of, or incidental thereto, jurisdiction over which is vested by this act in the commission, a time and place shall be fixed for the hearing thereof, which hearing, unless otherwise agreed to by all the parties thereto, must be held not less than ten days nor more than thirty days after the filing of such application." Section 11 provides that the period within which proceedings for the collection of compensation may be commenced in a case like the present one is six months.

It would seem that the filing of the application in writing stating "the general nature of the dispute or controversy concerning compensation, or concerning any right or liability arising out of, or incidental thereto," would "commence proceedings" within the meaning of section 11, in so far as the applicant is concerned; any action which the commission might take or not take after that assuredly cannot be chargeable to him and should not destroy his rights. Most particularly is this true in view of the expressed purposes of the Compensation Act and the spirit in which it has always been construed and applied by our courts. The letter of June 8, 1920, assuredly stated fully the matters required to be stated in an application; the commission has accepted it as an application within the meaning of the Compensation Act, and we agree with the contention of said commission that any clerical inadvertence in overlooking this application, as such, for a time, should not be visited upon the injured employee who has no control over the administration of the offices of the commission and who has done all that is required of him by an act essentially and primarily enacted for his benefit and protection.

The insurance company argues that it was not officially served with a copy of this "application," if this letter is to be regarded as such. But it was informed of the application, whether formally or informally, and so it was not prejudiced in any way. Olivera's letter to the commission, written on June 8, 1920, recites that there is inclosed a copy of the letter sent to the Industrial Accident Commission (the application). On June 18, 1920, the insurance company wrote to Dr. Brown in connection with the case and stated in that letter: "We understand this matter is being referred to the Industrial Accident Commission." There were communications between the Industrial Accident Commission and the insurance carrier regarding this application, and there is not the slightest doubt that the insurance carrier was fully informed about the fact of the application having been sent to the commission, and the contents thereof. While it is true that the matter was not brought to a hearing within thirty days after the filing of this application, the section of the Compensation Act governing this matter provides that it must be brought to a hearing within thirty days after the filing of the application "unless otherwise agreed to by all the parties thereto." As this matter is one in which the commission and not the employee is to act, any neglect or oversight of the commission should not prejudice the employee, under our view of the general equitable purposes of this act. Furthermore, there is evidence in the record from which it may be inferred that the delay was by agreement of the parties-or at least by agreement of the parties complaining of the same here. For the record contains a letter from the Industrial Accident Commission to Olivera, dated June 14, 1920, acknowledging receipt of the application of June 8th, and stating that the insurance company had informed the commission that it was in communication with Dr. Brown about the case and would take up the matter further upon receipt of a report from Dr. Brown. The inference is certainly permissible that the delay was at the instance of the insurance carrier and for its benefit, to enable it to more thoroughly investigate the case and determine what its attitude in the matter should be.

Under all the circumstances of this case and after a very full and careful reading of the entire record, we find no

errors in the proceedings which would justify us in reversing the award of the commission. Any informalities which may have occurred would not invalidate the award herein made, in view of the provisions of section 60 of the act we are considering; and, furthermore, as we have stated, if any such informalities occurred, we do not see that they were prejudical to the petitioners here.

The award of the Industrial Accident Commission is affirmed.

Sturtevant, J., and Nourse, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 13, 1922, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 15, 1922.

All the Justices concurred.

Waste, J., was absent and Richards, J., pro tem., was acting.

[Civ. No. 3951. First Appellate District, Division Two.-March 20,

1922.]

MICHAEL T. KEENA, Respondent, v. UNITED RAILROADS OF SAN FRANCISCO (a Corporation), Appellant.

[1] NEGLIGENCE

- DEATH OF MINOR COLLISION WITH STREET-CARLIABILITY OF DEFENDANT DISREGARD OF NEGLIGENCE OF PARENTS -ERRONEOUS INSTRUCTIONS.-Where in an action by a father to recover damages for the death of his minor child, who was struck by one of defendant's street-cars, the defendant pleaded the contributory negligence of the child's parents and introduced substantial testimony in support of its plea, it was error to give instructions making the defendant liable if guilty of negligence which proximately contributed to the death regardless of the contributory

1. Parents' negligence as imputable to child of tender years, notes, 1 Ann. Cas. 216; 7 Ann. Cas. 244; 11 Ann. Cas. 686; Ann. Cas. 1912D, 521.

negligence of the parents, notwithstanding other instructions were given on contributory negligence.

[2] ID.-EVIDENCE-LAST CLEAR CHANCE DOCTRINE-INSTRUCTION.— Where in such action the evidence was conflicting as to whether the car was stopped as quickly as it could have been after the gripman saw the child in a place of danger, it was proper to give an instruction on the last clear chance doctrine.

[3] ID.-DEATH OF MINOR-ACTION BY FATHER-JUDGMENT-COMMUNITY PROPERTY.-In an action by a father for the death of his minor child in which the mother is not joined as a party plaintiff, her contributory negligence may be set up as a defense, since the proceeds of the judgment are community property. [4] ID.-DEFENSE TO ACTION-CONTRIBUTORY NEGLIGENCE OF MOTHER OF CHILD THEORY.-The contributory negligence of the mother is a defense to the action on behalf of the community to recover for the death of the child, not because of her interest in the community property but because in caring for the child she represents and acts for the community and for the husband as the head of the community, and her negligence in caring for the child is the negligence of the husband. (Opinion of the supreme court on denial of hearing.)

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Bernard J. Flood, Judge. Reversed.

The facts are stated in the opinion of the court.

Wm. M. Abbott, K. W. Cannon and Ivores R. Dains for Appellant.

Daniel A. Ryan for Respondent.

STURTEVANT, J.-The plaintiff commenced an action against the defendant to recover damages for the death of his minor child, a boy of the age of four years and eight months, who was struck by a Castro Street cable car on May 9, 1918, and from which wounds the child subsequently died. The plaintiff was awarded a judgment in the sum of two thousand five hundred dollars, and the defendant has appealed under section 953a of the Code of Civil Procedure. In his complaint the plaintiff alleged that the defendant's

2. Applicability of doctrine of last clear chance to case of imputed negligence, note, 26 L. R. A. (N. S.) 309.

agent negligently operated the car, and by reason of such negligence the child was killed. The defendant answered denying the material allegations of the complaint and pleaded the contributory negligence of the child and also the contributory negligence of the child's parents. The points made by the appellant asking for a reversal will be discussed in the order of their presentation by the appellant. [1] The first two points are so closely allied that they will be discussed together. The plaintiff requested, and the trial court gave, two instructions, which the appellant assigns as erroneous. One of the instructions

is as follows: "If you find that, at the time and place in question, the gripman in charge of said car saw said child upon or near the tracks and did not give any warning of its approach, and if you further find that he was negligent in not doing so, and that such negligence proximately contributed to the death of the plaintiff's child, then your verdict must be in favor of the plaintiff and against the defendant." The other instruction complained of is as follows: "If you find at the time and place in question, the gripman operating said car drove the same at a dangerous rate of speed, then I charge you that he was guilty of negligence, and if you find that such negligence proximately contributed to the death of plaintiff's child, your verdict must be in favor of the plaintiff and against said defendant, United Railroads of San Francisco." The objection, made to each of the instructions, is, that if an instruction by its terms, purports to settle the conditions necessary to the predication of a verdict, it must be correct in its entirety, and must not overlook pleaded defenses on which substantial evidence has been introduced. As the defendant had pleaded the contributory negligence of the child's parents, and as it had introduced substantial testimony in support of its plea, the defendant complains that the instructions were erroneous, for, in legal effect, they directed a verdict even though the parents were guilty of contributory negligence. In support of its position the appellant cites and relies on Pierce v. United Gas & Electric Co., 161 Cal. 176 [118 Pac. 700]; Killelea v. California Horseshoe Co., 140 Cal. 602 [74 Pac. 157]. The respondent attempts to justify the instructions by calling attention to the fact that each of the instructions contained the limitation, "That