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ion of a majority of the court in Maurer v. Greening Nursery Co., supra, that such was the unavoidable result of this piece of legislation, whatever else its purpose, and if not deemed desirable it was the province of the legislature, not the courts, to change or repeal the law.
The controlling reason which impelled the decision in the Maurer Case was that the firm of Maurer Brothers, a copartnership, as such and in its firm name, with no mention of the individual members composing it, entered into a contract in writing during the period it was in default and criminally liable to fine and imprisonment for failure to file the required certificate, rendering the contract absolutely void. In the instant case the written contract between the parties is in their individual names, personally signed by plaintiffs with their names set out in full in the body of the instrument, with no partnership name stated nor reference made to a partnership.
The stipulation that plaintiffs were partners, before quoted, if referred to the date of the agreement is not a stipulation that they contracted as such with defendants, nor does it serve to change the character of the written instrument by which they were obligated as individuals and not as a firm or copartnership. The written contract on its face and as it reads does not violate Act No. 164 and is not shown to be invalid. Defendants' contention was in the trial court, and is here, that the contract entered into between plaintiffs and defendants is void because in violation of the statute, and as plaintiffs must necessarily rely entirely upon their contract to sustain their suit the bill should be dismissed. This the court did, on defendants' motion in the nature of a demurrer. With this we are unable to agree for the reasons stated. The decree, or final order, dismissing plaintiffs' bill will be reversed and set aside and, as other questions
which may be involved touching the merits and validity of plaintiffs' lien have not been gone into or passed upon by the trial court, the case will be remanded for such further proceedings as may be appropriate, and not incompatible with this opinion. Plaintiffs will recover costs of this court.
BIRD, C. J., and OSTRANDER, MOORE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.
GAGE v. BOARD OF CONTROL OF PONTIAC STATE
1. MASTER AND Servant-WORKMEN'S COMPENSATION ACT-NOTICE -MEDICAL AND HOSPITAL EXPENSES LIABILITY. Under section 3, part 2, of the workmen's compensation act (2 Comp. Laws 1915, § 5434), where an injured employee was taken by his family physician to a hospital and operated upon, his case requiring immediate action, and the next day notice was given to the employer and aid requested, but no response was made thereto, the latter is liable for plaintiff's reasonable medical and hospital expenses during the remainder of the three weeks after the injury.1
2. SAME STATUTE-CONSTRUCTION-EXCEPTION.
While a logical construction of said statute requires notice and opportunity to the employer to select the physician and furnish the needed service during the prescribed three weeks before the injured employee can secure the same at the employer's expense, yet it is not an unreasonable or strained construction, in view of its purpose, to recognize as inferable exceptions in extraordinary cases where the surrounding circumstances and critical condition of the injured employee present emergencies or exigencies
'On the question of allowance for medical and hospital services to injured employee under the Workmen's Compensation Act, see note in L. R. A. 1917D, 178.
demanding prompt action which reasonably warrant him in securing the needed service at the employer's expense without first giving notice and opportunity to furnish or offer the same.
Evidence that the employee was injured in the morning, but did not at first realize the nature of his injury, that the same day his wife called the family physician, who pronounced the case strangulated hernia, and advised an immediate operation, which was performed that evening, the physician stating that the following day would be too late, held, to support the conclusion of the industrial accident board that the employer was liable for the expenses of said operation, although no notice or opportunity to furnish the same had been given.
Certiorari to Industrial Accident Board. Submitted April 9, 1919. (Docket No. 17.) Decided May 29, 1919.
Clinton C. Gage presented his claim for compensation against the board of control of the Pontiac State Hospital for medical, surgical and hospital expenses incurred as a result of an accidental injury in defendant's employ. From an order awarding compensation, defendant brings certiorari. Affirmed.
Alex. J. Groesbeck, Attorney General, and Clare Retan, Assistant Attorney General, for appellant. A. Floyd Blakeslee, for appellee.
STEERE, J. In this case defendant questions the validity of an award of $189 made against it by the State industrial accident board in favor of plaintiff, for medical, surgical and hospital expenses incurred by him as the result of an accidental injury which he sustained on September 15, 1917, while in defendant's employ. The necessity for such services and the reasonableness of the charges made therefor are apparently not questioned, but it is contended that defend
ant was entitled under the employers' liability law to notice of plaintiff's injury and need of medical attendance by reason of it, and a reasonable opportunity to itself furnish all needed medical, surgical and hospital service, before plaintiff could legally secure the same of others at defendant's expense. This contention is based on the provisions of section 3, part 2, of the workmen's compensation act (2 Comp. Laws 1915, 5434), which is as follows:
"During the first three weeks after the injury the employer shall furnish or cause to be furnished reasonable medical and hospital services and medicines when they are needed."
Plaintiff's injury was a hernia. The facts are practically undisputed and the case has been adjusted in all other respects by appropriate proceedings before the industrial accident board based on an agreement in regard to compensation, approved by the board. The issue raised is pointedly presented and concisely argued by counsel on both sides, and by them narrowed to the question of whether, under the claimed exigencies shown here, the injured party may, pending reasonable notice to the employer of the necessity for medical and surgical attention and until the latter after reasonable notice furnishes the same, secure such attention at the expense of the employer. Counsel for plaintiff frankly concedes it inferable from the duty imposed by the statute that in the majority of cases and as a general rule the employer should be entitled to furnish, or dictate where an injured employee shall obtain, the necessary medical, surgical and hospital attendance, and broadly admits such general rule proper for the protection of both parties, "in order to prevent an unscrupulous physician from exploiting the injury to his own benefit and to prevent, perhaps, a possibility of malingering on the part of the injured employee." But no such evil elements
are claimed or suggested as present in this case, and it is urged for plaintiff to be also fairly inferable from the act as a whole and the particular subject to which the section applies that the injured party may secure such services at the expense of the employer in exceptional cases involving manifestations of emergency and demanding prompt attention, as in the instant case, and whether such excepting conditions existed is a question of fact for the accident board to determine.
Plaintiff's home was on Johnson avenue in the city of Pontiac. He was when injured and had been for many years employed by defendant at the Pontiac State Hospital for the Insane, in its building department. On the day of his injury he was working in a tunnel where it was somewhat dark and in attempting to lift or carry out some material experienced an injury the nature of which he did not then apparently understand, or localize, but which caused him to suspend work, telling his "boss," who was the superintendent, that he was sick and had to go home, which he did, arriving there between 9 and 10 o'clock, as his wife testified, not yet knowing what ailed him. Shortly before noon he discovered that he was suffering from a hernia. During the day he experienced. increasing pain and grew weaker. His wife summoned their family physician, Dr. Fox, who called shortly after supper and found plaintiff suffering with a strangulated femoral hernia which, in the doctor's opinion, demanded prompt surgical action, and he at once called in for consultation a surgeon in whom he had confidence named Dr. Howlett, and an immediate operation was deemed by them necessary to save the patient's life. He was thereupon taken in an ambulance to the Pontiac city hospital, before dark that evening, and operated upon almost immediately, remaining in the hospital 19 days. He made a good recovery and at the time of hearing before the board