ON APPLICATION FOR REHEARING
ODOM, J.The issues in this case have been narrowed down to one, to-wit: Is the plaintiff unreasonably refusing to undergo an operation for hernia?
We have held that, under the circumstances of this case, his refusal to submit to an operation is not unreasonable. This is as far as we have gone.
Counsel for defendant have submitted a long list of authorities from other jurisdictions holding that under some circumstances an injured employee must forego compensation if he refuses an operation.
In the case at bar, we do not pretend to decide that question.
But what we did hold was that the plaintiff, under the testimony, was not unreasonable in his refusal to submit to the proposed operation.
There were four physicians called as witnesses in the case: Doctors Cassity, Williams, Boyce and Sanderson.
Doctor Cassity said that the chances for a complete cure by an operation were fair but not absolute; that sometimes there are fatalities attending such operations; that an anaesthesia is generally used though not absolutely necessary; that an operation can be performed with local anaesthesia, but that the hazard of infection is *211increased by operating with a local anaesthetic.
Doctor Williams testified that the conservative treatment for hernia of plaintiff’s kind is a truss, “the radical treatment is operation”; that physicians advised operations; and on being asked if that operation is safe, replied: “Comparatively so.”
He said that such an operation is safer than most abdominal operations; that the cure “in most instances” is certain; that an operation for hernia brings on less pain and suffering than most operations on the abdomen. He said if a man is young and sound in health his chances for' recovery “ought to he one hundred per cent”.
He was asked if there was a chance for a man to lose his sexual powers from an operation for hernia, and he said “that occurs occasionally”.
He said it was a fairly simple operation and that doctors considered it a simple operation of the abdomen. He was asked if he had not read of deaths from the operation, and he said: “I think there are a good many cases; I do not recall.”
Doctor Boyce advised plaintiff to undergo the operation. As to the probability of the success of such an operation, he said that his experience showed one hundred per cent success, but that from his observation probably ninety-six or ninety-seven per cent were cured, and that for a man of plaintiff’s age it should be ninety-nine per cent, but that when a man submits to such an operation there can be uncertainty of cure and that death could occur from complications.
Doctor E. L. Sanderson testified that the operation required greater skill than an operation for appendicitis; that there were unsuccessful operations for hernia; that he advised such operations; that in one-third of such operations he used local anaesthesia; and that one out of twenty operations of the kind are failures and that some such operations prove fatal.
It will thus be seen that three of the four physicians testified that some such operations prove fatal. One says that the chances for recovery are fair. One says they should he one hundred per cent safe, but he does not say they are. None of them say it is a simple operation but say it is a “simple abdominal operation”; and one says it is “comparatively safe”. One says that complications may arise producing fatal results, and one says that there are cases where men lose their sexual powers as a result of such operation.
From this testimony we cannot say the operation is “simple and unattended by risk”.
In the case of Bronson vs. Harris Ice Cream Co., supra, the surgeons advised that the operation would not be dangerous to life or health and that the chances for complete success, in which event the limb would be completely restored, and of non success, in which event the limb would be ankylosed and rigid, were about even; but in that case, according to the advice of the surgeons, there was no danger to life or health; and yet the court held that the plaintiff’s refusal to submit to the operation was not unreasonable.
The court cannot say that in order for plaintiff to get compensation he must take a chance on losing his life, however slight that chance may be.
Counsel say in brief that our ruling is contrary to the holding in the Bronson case. On the contrary, we are following that case, as we understand it.
Rehearing refused.