(after stating the facts as above).
Thе 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 fоr determination, viz.: (1) Does the evidence sustain the finding? and (2) does the finding sustain the award? It is the province of the Industriаl 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 conclusiоn 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 сompensation law. That proposition has been so often stated that it is unnecessary to cite аny 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 periodicаl visits at the windows not only promoted their health and comfort but also promoted their efficiency. Such аcts 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),
The difficulty arises whеn 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 specifiс 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),
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, bеnch 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 оn 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 bоard has drawn a conclusion which no reasonable man could legitimately draw; and therefore we сannot set aside the board’s finding that the injury arose out of and in the course of the employment.
*28 *27 The seсond 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 postеd .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 whiсh 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 thаt 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.