National Biscuit Co. v. Roth

*25 Dausman, C. J. (after stating the facts as above). The fact must not be overlooked that the legislature has confided the administration of the compensation law primarily to the Industrial Board. On appeal to this court, two ultimate questions may be presented for determination, viz.: (1) Does the evidence sustain the finding? and (2) does the finding sustain the award? It is the province of the Industrial Board to determine, in the first instance, the ultimate facts of the case. If, in determining an ultimate fact, the Industrial Board reaches a legitimate conclusion upon the evidential facts, we must not disturb that conclusion even though we might prefer another conclusion which is equally legitimate. The words “arising out of and in the course of the employment” must be liberally construed to give effect to the spirit and purpose of the compensation law. That proposition has been so often stated that it is unnecessary to cite any authority to sustain it. We have no difficulty whatever in reaching the conclusion that in the case at bar the employee did not take himself beyond the protection of the law by going to the window for relief from the heat and to promote his health and comfort by getting fresh *26 air. That was allowable under the working regulations of the plant. Indeed, the employer expected the boys to go to the windows during their rest periods. In view of the conditions which prevailed at their working place, it is a fair inference that their periodical visits at the windows not only promoted their health and comfort but also promoted their efficiency. Such acts as are necessary to the comfort and convenience of workmen, although not technically acts of service, are incidental to the service; and an accident occurring in the performance of such an act is deemed to have arisen out of the employment. Hollant, etc., Sugar Co. v. Shraluka (1917), 64 Ind. App. 545, 116 N. E. 830. See, also, cases collected in Artman’s Manual, p. 55. The difficulty arises when we come to determine what ought to be the effect of the employee's conduct in sitting in the window. Did the fact that he sat in the window amount to an abandonment of the service? On this point there is no specific rule of evidence to guide us. In the nature of things, there can be no such rule. The only rule available on this feature is the general rule of reasonableness. Under that general rule, reasonable minds may reach opposite conclusions on a given state of facts. It is also true that prior decisions involving the principle now under consideration are not precedents although they may be persuasive. (For illustrative cases see L. R. A. 1916A p. 236 et seq). It follows that as a matter of necessity, each case must stand on its own peculiar facts. Indian Creek Coal, etc., Co. v. Wehr (1920), 74 Ind. App. 141, 127 N. E. 202. However, the following general statement may be somewhat helpful: An employee will not be deemed to have abandoned the employment or to have withdrawn himself from the scope of the employment if, at the time of the injury, he was doing what he might reasonably do or what he might reason *27 ably have been expected to do. (Marion, etc., Iron Works v. Ford [1924], 82 Ind. App. 152, 144 N. E. 553); or if he was doing what might have been anticipated by a reasonable person familiar with all the circumstances and conditions of the working place and the nature of the work (Union Sanitary Mfg. Co. v. Davis [1917], 64 Ind. App. 227). As illustrative of the liberality of the courts in this regard, see Ansted Spring, etc., Co. v. Ayres (1919), 69 Ind. App. 160, 121 N. E. 446; Granite Sand, etc., Co. v. Willoughby (1919), 70 Ind. App. 112, 123 N. E. 194; Nordyke, etc., Co. v. Swift (1919), 71 Ind. App. 176, 123 N. E. 449; In re Von Ette (1915), 223 Mass. 56, 111 N. E. 696 , L. R. A. 1916D 641. In the case at bar, the Industrial Board had the right to take into consideration the tendencies of youth; for that subject constitutes a part of our stock of common knowledge. No chair, stool, bench or other convenience was provided on which the boys could sit during their rest periods at or near the window. We know that boys are not as cautious as persons of mature years. It is only natural, then, to expect that Lester Roth would seat himself on the windowsill for greater comfort than he could derive from standing on the floor. The Industrial Board must have been of the opinion that, by so doing, he did not take himself without the scope of his. employment, but that while seated in the window awaiting the expiration of his allotted rest period, he was in the line of duty and in the service of his employer. In the light of the evidence, we cannot say that the board has drawn a conclusion which no reasonable man could legitimately draw; and therefore we cannot set aside the board’s finding that the injury arose out of and in the course of the employment. *28 *27 The second question to be determined is whether the employee forfeited compensation by a “wilful failure *28 or refusal to obey a reasonable written or printed rule of the employer which has been posted .in a conspicuous place.” §8 Compensation Law, Acts 1919 p. 158, §9453 Burns 1926, §8020r Burns’ Supp. 1921. The burden of proving the averments of its special answer was upon the employer. The failure on the part of the Industrial Board to make a finding on that point is equivalent to a finding against the employer. There is no evidence whatever which could have justified the Industrial Board in finding that the employee was guilty of any wilful misconduct within the meaning of the law. (See cases collected in Art-man’s Manual at page 93 et seq.). The award is not contrary to law on the ground that it is excessive. The Industrial Board properly found that the employee was totally disabled for work. Whenever he sufficiently recovers to enable him to engage in some remunerative employment, the award may be modified on account of his changed condition. The award is affirmed. Nichols, J., dissents. McMahan, J., not participating.