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had returned to his work in defendant's employ. The bill in question is for surgical and medical attendance, ambulance, and hospital expenses, the largest item being $100 for the operation, furnished within three weeks after the injury. Of the necessity for prompt action after the physicians had determined Gage's condition Dr. Fox testified in part as follows:
“Q. Was there any particular urgency there?
"A. What we call strangulated hernia. It is where the bowel goes down and becomes strangulated. It is strangulated there and the bands go round to the outer part and the circulation is shut off. It is sometimes only a few hours before gangrene will set in in the bowels, which means almost certain death.
"Q. For that reason you considered that an immediate operation was necessary?
"A. Yes, sir. "Q. In your opinion a delay would have been fatal?
"A. Yes, sir, In the morning this man would have been beyond help."
The Pontiac State Hospital is one of the State asylums for the insane, formerly designated as the “Eastern Michigan Asylum” (1 Comp. Laws 1915, § 1311), but given its present name in 1911 without change of character or functions by an act devoted to "Changing the names of the Michigan Asylums for the Insane" (1 Comp. Laws 1915, § 1365). These institutions have, under the statute providing for them, a medical superintendent with adequate medical and surgical staff for the purposes of the institution, which is the care and treatment of insane inmates committed to them by the probate courts and designated in the act as “patients.” Dr. Christian was then medical superintendent of the institution. Mr. Halsey, its steward, testified it was customary to furnish medical attendance and hospital service to its employees in need of the same; that they did surgical work there but had a surgeon, Dr. Mack, in Detroit whom they called in to do "the surgical work—the complicated work."
Defendant contends that reasonable notice and opportunity were not given it of plaintiff's injury and needs, and as the statute makes it mandatory for the employer to furnish the same, plaintiff was not authorized to secure such service at its expense. The only notice plaintiff gave in relation to the matter was when he quit work in the middle of the forenoon telling his boss, the superintendent, that he was sick and had to go home. This, while not definite notice of an accidental injury, was at least notice of a sudden physical affliction which rendered him incapable of continuing at work. Plaintiff, who testified he never was advised and did not then know he could receive medical attention at the hospital, states that his condition was such that “everything was hurlyburly” with him anyway and his “mind was occupied in other ways"; that he never notified them himself and did not know who did. His wife, who first cared for him after he reached home, testified that she tried to get their family physician some time before she succeeded; that after he came and she learned of the seriousness of her husband's condition she “took on and cried” for he had to be taken to the hospital immediately; but that she notified defendant the next morning, which she says was "the first chance I had," that she promptly went up there the next morning and tried to see Dr. Christian to notify him, but he was not in and she told his assistant, Dr. Butler, about it,- of the operation and that her husband was in the city hospital—and asked if they could do anything for him, saying "he was entitled to have something done by them for him if they did anything for any of their employees," to which Dr. Butler replied he would report the matter to Dr. Christian as soon as he returned, and when she asked if it was necessary for her to do so he replied it was not.
It appears undisputed that within 24 hours after the accident defendant was fully notified of it, and told where plaintiff then was by his wife, who requested aid in his behalf. Defendant then had notice with a request for proper attention, certainly giving opportunity to offer, and so far as shown to furnish from that time on all needed medical and hospital services during the remaining 20 days of the prescribed three weeks. It is not shown or claimed that defendant at any time furnished or offered to furnish plaintiff any free medical or hospital services or medicines for his accidental injury while in its employ. After such notice, request and reasonable opportunity to furnish or offer the required treatment and failure to act, defendant was clearly liable for plaintiff's reasonable expenses in securing the same during the remainder of the three weeks after the injury.
The more serious question is that of the expenses incurred in the claimed emergency prior to notice. Of this contention the board found and held as follows:
“It would seem that ordinarily the employer should be notified of an accident and given an opportunity to provide medical and surgical treatment to an injured workman. However, in a case like the instant one where the employee is in such a serious condition as to require an immediate operation and where his life would be endangered by any delay, the board believes that he should have the right to secure the necessary attention as soon as possible and that the employer should bear the expense of the same.
Respondent failed and neglected to offer any medical services even after receiving notice of the injury. The board believes that because of applicant's serious condition, the undisputed testimony of his physician being that an immediate operation was imperative in order to save his life, the case was brought within the emergency class, and respondent should pay the expenses incurred by the applicant for medical and hospital services during the first three weeks after his injury as provided by law."
In 1 Honnold on Workmen's Compensation, $ 193, where the admitted general rule of the employer's right to select the physician and furnish the necessary services for treatment of an injured employee is discussed, the author adds as a constructive corollary:
"But this does not militate against the employee's right to obtain medical and surgical treatment at the expense of his employer in the interim between the happening of the injury and time for notice to the employer of the employee's needs, subject to the right of the employer or insurer to change physicians at the close of the emergency treatment."
The authority to support this text is found in 1 Cal. I. A. C. Dec. pp. 385, 575. Counsel do not cite nor have we found any decisions by courts of last resort where this question has been directly involved. Counsel for defendant cite but two cases which relate to liability under a similar provision for medical services where the employee has procured the same without the employer's knowledge or consent-Keigher v. General Electric Co., 173 App. Div. 207 (158 N. Y. Supp. 939), and City of Milwaukee v. Miller, 154 Wis. 652 (144 N. W. 188, L. R. A, 1916A, 1, Ann. Cas. 1915B, 847). While the cases deal with that subject the exact question at issue here was not involved. Counsel quote from the Keigher Case as follows:
"But the duty to provide certain services, which is cast by the statute upon the employer naturally implies the right of the latter to select his own agencies for the proper fulfillment of that duty, unless la guage is found in the statute indicating a contrary intent.”
An examination of that case shows that defendant had provided for the injured employee a competent physician and surgeon, who took charge of the case and rendered professional service for a time, when the employee refused longer to accept his services and requested the employment of a certain physician of his own selection, which defendant declined to do. The physician the employee desired thereafter rendered him medical services which defendant declined to pay for. The court held that under these circumstances the general rule applied, and sustained the refusal. No question of intervening jeopardy before notice, or pressing emergency, was involved.
In City of Milwaukee v. Miller, supra, the employee, Miller, suffered an injury to his great toe and without requesting medical service or notifying the municipality of his injury employed his own physician and nurse. Eleven days after the accident amputation of the toe was deemed necessary by his physician, who then performed the operation. Ten days later, and three weeks after the accident, Miller for the first time notified the city of his injury and made claim for compensation, but even then gave no notice of his requiring medical services. Some time after receiving this notice the city tendered him the services of a competent physician which he did not accept and continued to employ his own physician until he had charged up 130 visits and the bill for medical service and nursing, which Miller claimed the city should pay, amounting to over $250. This the court declared “preposterous” in view of the nature of the accident and actual needs of the patient. No question of emergency was involved; but in discussing the facts and applying the general rule of the employer's right to notice, etc., the court to a degree recognized an inferable exception to it under possible circumstances as follows: