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18, 1915, for complete loss of sight of his left eye, to be paid by the Joliet Motor Company, plaintiff in error, and certified that the cause was one proper to be reviewed by this court.
The Industrial Board made a finding of facts, upon sufficient evidence, that on May 2, 1914, Frank Goodwin, while in the employ of the Joliet Motor Company as a machinist and receiving as wages three dollars per day, was injured by a particle of steel entering his left eye from the chipping of a cone which he was hammering into an axle of an automobile; that a few days later he was treated by an eye specialist, who found nothing wrong with the eye and prescribed eye-water to allay inflammation; that Goodwin, after laying off for a day or so, returned to his employment and worked up to August 22, 1914, when he quit and went into business for himself; that after the above treatment there was no further treatment of the eye until October 27, 1914, when Goodwin went to another eye specialist, who made an examination and found nothing in the eye but advised an X-ray, and by his advice two X-ray photographs were taken, one in Chicago and the other in St. Joseph's Hospital, in Joliet, both of which were negative and showed nothing in the eye; that Goodwin complained of pain and blurred vision, and the eye specialist reduced the condition so that he could see fingers at a distance of about four feet; that a cataract gradually formed on the eye until March 4, 1916, when loss of sight was complete, except that Goodwin could distinguish light but not objects; that the specialist advised an operation for the removal of the cataract and a day for the same was set, but it was postponed for the reason that the case was set for the hearing before the committee of arbitration and Goodwin feared that it might make it impossible for him to be present; that both eye specialists told him that there would probably be a recovery of eyesight if the operation were had, and one of them testified that seventy-five percentum of such opera
tions, at least, were successful, and the eye would probably be practically restored to normal vision for working purposes. The Industrial Board then made a finding that it had no power to force an operation unless there were reasons not indicated in the record, and entered an order as above stated. The uncontradicted evidence was that there was no possibility of danger to Goodwin from the operation.
The claims of the plaintiff in error are (1) that no claim for compensation was made upon it until after the expiration of more than six months after the accident; (2) that Goodwin sustained no incapacity on account of the accident except for two days at the time of the injury but continued at his usual work, receiving the same wages, and therefore was not entitled to compensation except for the two days; (3) that the loss of eyesight was due to his unreasonable failure to undergo the operation for the removal of the cataract and restoration of vision advised by the specialists 'employed by him and not to the original accident.
The foreman, Joseph Carlson, knew of the accident when it occurred, and afterward the manager of the plaintiff in error offered Goodwin $200 in settlement of the injury. Goodwin told the secretary or treasurer that he was going to look to the company to reimburse him, and the manager said that was all right and advised him to take care of the eve. The notice was sufficient. Parker-Il'ashington Co. v. Industrial Board, 274 III. 498; Suburban Ice Co. v. Industrial Board, id. 630.
Goodwin lost only two days at the time of the accident, after which he resumed his work, but the compensation fixed by the statute for the loss of an eye does not depend on the loss of time but is fixed at fifty percentum of the average weekly wage during one hundred weeks.
The growth of the cataract was a very slow affair, and the time when there was an entire loss of sight was fixed by the arbitration committee and Industrial Board as August 18, 1915, fifteen months after the accident. The evi
dence was that an operation for the removal of a cataract is neither serious nor dangerous to an ordinary person in good health and a very large majority of such operations are successful. There was a good probability of recovering normal vision for ordinary purposes by removing the cataract, and the Industrial Board found that Goodwin ought to have the operation performed. The fact that the board had no power to force him to submit to an operation did not determine the question involved, which was whether the total loss of sight was attributable to the accident, which caused the slow growth of a cataract, or to an unreasonable refusal of Goodwin to have the cataract, which caused the loss of vision, removed. The statutory provision for reducing or suspending compensation if an employee shall persist in unsanitary or injurious practices which tend to either imperil or retard his recovery or shall refuse to submit to such medical or surgical treatment as shall be reasonably essential to his recovery does not apply to an original application for compensation on account of an entire loss of the sight of an eye, where the question to be decided is whether that loss is due to an unreasonable refusal to remove the cause. The evidence was that the proposed operation would not be attended with any risk and appears to be such as any reasonable man would take advantage of if he had no one against whom he could claim compensation, and the board found that it was the duty of Goodwin to have the operation performed. Under that finding the refusal of Goodwin was unreasonable, and the continued total loss of sight should be attributed to such refusal and not to the accident. Walsh v. Locke, 6 Neg. & Comp. Cas. Ann. 675.
The order of the board was not consistent with its finding. If the operation for the loss of sight should be had and prove unsuccessful the Joliet Motor Company would be liable for the loss of sight as well as the surgical and hospital services necessary for the operation and the treatment
already received, but if successful its liability would be for the temporary loss of time and treatments had and surgical and hospital expenses necessary for the operation, and if the operation should not be a substantial success there would be a different basis of compensation from a case of total loss of eyesight.
The judgment is reversed and the cause is remanded to the circuit court, with directions to set aside the order of the Industrial Board, and for such further proceedings as are provided by statute.
Reversed and remanded, with directions.
(No. 11451.-Decree affirmed.) WALTER H. WAY, Appellee, vs. CONRAD Geiss, Appellant.
Opinion filed October 23, 1917.
1. Wills—testator may fix time when members of a class are to be ascertained. The testator may fix the time when the members of a class are to be ascertained at a period other than his death, provided it is not so remote as to violate the rule against perpetuities.
2. SAME—when gift will embrace children born after death of testator. If the testator fixes the time when members of a class are to be ascertained at a time subsequent to his death, such as by a devise to a certain person and his children if living at the death of the life tenant, children born after the death of the testator and before the death of the life tenant are members of the class but not those born after the life tenant's death.
3. Same-when father and child become tenants in common of land devised. A devise of a life estate to the testator's widow and “after her death” to a named son of the testator "and his children," but if he be dead leaving no issue then to the children then living of another named son, is to a class to be ascertained at the death of the life tenant, and if at such time the first named son is living and has a living child, the two become tenants in common of the land. (Davis v. Ripley, 194 Ill. 399, Boehm v. Baldwin, 221 id. 59, and Reed v. W clborn, 253 id. 338, distinguished.)
APPEAL from the Circuit Court of Cass county; the Hon. Guy R. WILLIAMS, Judge, presiding.
CHARLES Æ. Martin, for appellant.
A. A. LEEPER, for appellee.
Mr. JUSTICE FARMER delivered the opinion of the court:
Appellee, Walter H. Way, filed his bill in the circuit court of Cass county against appellant, Conrad Geiss, for the partition of eighty acres of land in said county. Complainant claimed to be the owner in fee of the undivided one-half of the land described. A decree was granted as prayed, and this appeal followed.
The question here involved is the construction of the will under which appellee claims title to the land.
John H. Way, grandfather of appellee, died testate in Cass county in 1886, seized of the land involved in this proceeding. He left surviving him a widow, Amanda J. Way, and Charles H. Way, John F. Way, Marion F. Way, Harvey D. Way and Fannie Showalter, his children. By his will testator gave his personal property to his wife absolutely, and devised his real estate to his wife for life or as long as she remained his widow, with power to sell and convey the same. The will then provided: “After her death or re-marriage I give, devise and bequeath all said real estate, or the proceeds thereof, to my son Harvey D. Way and his children, but if he be dead leaving no issue, then I give, devise and bequeath said real estate, or its proceeds if sold, to the children of my son John Frank Way then living, share and share alike.” Harvey D. Way was nineteen years old at the death of his father and unmarried. He subsequently married, and appellee was born in 1895. In June, 1898, Amanda J. Way, the widow, died, never having re-married. In August, 1899, Harvey D. Way conveyed the eighty acres of land in question to appellant, who has been in possession since January 1, 1900.
The construction of the paragraph of the will before set out is the sole question involved. Appellant contends