"The result is that Miller, since he failed to notify his employer of his need, never had competency to employ a physician at the expense of the city of Milwaukee, except for such reasonable length of time as necessarily intervened between his injury and reasonable opportunity after due notice for the city to exercise its privilege."

In that case the general rule, conceded here, that the law should be construed and applied so as to secure to the employer reasonable opportunity to conserve the related interests of both parties to the misfortune by supplying the medical and surgical needs of the injured is instructively discussed at length. Running through the discussion is an indicated recognition that by fair construction of the act there may be exceptional cases where it is permissible and in the interest of both parties for the injured party to promptly secure such services before notice, although "ordinarily" reasonable opportunity should be first accorded by him to the employer. It is pointed out that the reason of the provision is two-fold:

"First. As a rule, an employer is more competent to judge the efficiency of the doctor employed and to provide efficient medical and surgical treatment. Second. It is to the interest of the employer to furnish the very best medical and surgical treatment, so as to minimize the result of the injury and to secure as early a recovery as possible. The more serious the result of the injury, the more the employer must pay."

In this case there was, as the result of prompt and efficient action after plaintiff's critical condition was discovered, an early and full recovery, at small expense to defendant compared with a death loss which was threatened and would have been the result of delay until the following morning, as the undisputed medical testimony shows. It is indicated that plaintiff after his return home and his distress increased was not in a physical or mental condition to judge or act in

the matter. His wife is not shown to have then known he had sustained an accidental injury. She knew he was sick, and when his condition indicated the need called in their family physician who recognized the emergency. It is undisputed that from that time immediate and proper action was successfully taken to save the patient's life by a prompt and critical major operation, which it can with some force be contended might have been delayed until too late by sending word to the hospital and waiting for them to investigate and call from Detroit Dr. Mack, who did their complicated surgery work. Broadly considered, the statute as to medical service to be paid for by the employer involves the combined interests of both parties. What services were actually and reasonably necessary to that end, and what is a fair compensation therefor are the vital inquiries. Unquestionably

that construction of the statute is logical and the adopted rule sound which requires notice and opportunity to the employer to select the physician and furnish the needed service during the prescribed three weeks before the injured party can secure the same at the employer's expense, but in the many complications which arise in industrial activities it is not an unreasonable or strained construction of the statute in view of its purpose to recognize as inferable exceptions in extraordinary cases where the surrounding circumstances and critical condition of the injured party present emergencies, or exigencies demanding prompt action which reasonably warrant the injured party in securing the then needed service at the employer's expense without first giving notice and opportunity to furnish or offer the same. Such cases are, of course, distinctively exceptional and consequently rare. Where such exception is claimed, the question of a pressing necessity demanding and excusing prompt action before reasonable time for notice

and opportunity thereafter for the employer to act becomes primarily an issue of fact. There is testimony in this case to support the conclusions of the board in that particular.

The award will, therefore, stand affirmed.

BIRD, C. J., and OSTRANDER, MOORE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

HENDERSON v. HENDERSON.

GUARDIAN AND WARD-COMPETENCY-EVIDENCE-SUFFICIENCY. In proceedings to have plaintiff's guardian discharged, and to have plaintiff declared mentally competent to have the care, custody, and management of his estate, evidence examined, and held, sufficient to support the finding of the jury that plaintiff was mentally incompetent.

Error to Cass; Des Voignes, J. Submitted January 15, 1919. (Docket No. 10.) Decided May 29, 1919.

Petition by Milton A. Henderson against Harley Henderson for the removal of defendant as his guardian under 3 Comp. Laws 1915, § 13950. The petition was denied in the probate court, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error. Affirmed.

C. E. Cone and C. M. Lyle, for appellant.

Elias P. Harmon and Thomas J. Cavanaugh, for appellee.

On opinion evidence by nonexpert as to contractual or testamentary capacity in lunacy proceedings, see note in 37 L. R. A. (N. S.) 598.

STEERE, J. Plaintiff began this proceeding in the probate court of Cass county to obtain discharge of defendant as his guardian, the issue being whether since put under guardianship plaintiff has recovered from the infirmities then found by the probate court and is now mentally competent to have the care, custody and management of his estate. The petition for appointment of a guardian over him was filed in the probate court on September 16, 1915, under provisions of the statute authorizing such course in case of persons who by reason of old age or disease are mentally incompetent to have the care and custody of their estate (3 Comp. Laws 1915, § 13950). Plaintiff at that time made no objection to the proceeding. An order was made for personal service on plaintiff, Milton A. Henderson, and William Henderson, his son, then living with him, fixing the date of hearing October 1, 1915; personal service was made on William, September 17, and service was accepted in writing by plaintiff on September 16. On October 1, 1915, a hearing was had before the probate court at which all parties in interest were present and the said Milton A. Henderson was adjudged mentally incompetent under the statute. Defendant Harley Henderson, his son, was appointed guardian.

While plaintiff makes certain somewhat random and querulous complaints of his guardian's conduct, his chief contention is that he has a right and is perfectly competent to control and manage his own property, his express comparative estimate being, "I know more than both of my d-d boys." The record fairly shows that defendant has honestly and faithfully conserved and improved the condition of his father's estate, acting with the approval and under the direction of the probate court, and has provided for his father's care and needs out of the income to the extent plaintiff would accept. He secured a good home for his father

in Porter township in the vicinity of the old home in the community where the father desired to be. Of this plaintiff says, "I was there four years," and "I had a good home, perfectly satisfactory to me until last year."

In August, 1917, plaintiff left this home which had been provided for him by his guardian and went to the home of a family named Conkright some 15 miles away, a member of that family going after him at his request without the knowledge or consent of defendant, and on August 25, 1917, he filed a petition in the probate court of Cass county setting out the appointment of defendant as his guardian because of his mental incompetency, stating that defendant had acted as such guardian since his appointment, and concluding:

"Your petitioner further shows that he has now recovered from the mental infirmities he might have had at the time his said guardian was appointed and that he is now fully restored to soundness of mind.

"Your petitioner therefore prays that he may be declared by the finding or order of this court to be restored to soundness of mind, and his guardian discharged, pursuant to the statute in such cases made and provided."

After a full hearing upon this petition in the probate court, the same was denied. Appeal was thereupon taken to the circuit court of Cass county, where a trial by jury lasting some four days resulted in a verdict "That said petitioner, Milton A. Henderson, is mentally incompetent to have the care, custody and management of his estate." Upon which verdict judgment was rendered, and the case brought here for review upon numerous assignments of error.

Milton A. Henderson, plaintiff, is, or was at the time of this trial, about 77 years old and a veteran of the civil war. Before age and rheumatism disabled him his life work was farming. Since 1873 he