National Biscuit Company v. Roth

• Decision Date: 30 January 1925
• Docket Number: 11,999
• Citation: 146 N.E. 410,83 Ind.App. 21
• Parties: NATIONAL BISCUIT COMPANY v. ROTH
• Court: Indiana Appellate Court

146 N.E. 410

83 Ind.App. 21

NATIONAL BISCUIT COMPANY v. ROTH

No. 11,999

Court of Appeals of Indiana

January 30, 1925

Rehearing denied April 23, 1925.

From Industrial Board of Indiana.

Application for compensation under the Workmen's Compensation Act by Lester Roth against the National Biscuit Company. From an award for claimant, the defendant appeals.

Lester Roth filed an application in the usual form for compensation for personal injuries sustained while in the service of the National Biscuit Company. The employer filed an answer in which it alleged that the injury for which the employee claims compensation was due to his wilful misconduct in this to wit:

"That he wilfully failed and refused to obey a reasonable written rule of the employer posted in a conspicuous place forbidding him to sit in the window from which he fell, and wilfully failed and refused to obey instructions not to sit in said window; and deliberately exposed himself to the hazard of falling from said window."

The Industrial Board found that on April 30, 1923, Lester Roth received an injury by an accident arising out of and in the course of his employment; and that as a result of the injury he has been totally disabled for work. No finding was made on the issue tendered by the answer. Compensation was awarded for a period not to exceed 500 weeks.

The appellant contends: (1) That the evidence does not sustain the finding, and (2) that the finding does not sustain the award--the award being excessive.

The undisputed evidence establishes the following facts:

"The employer was in the business of baking bread. The ovens were on the third floor of a building in Indianapolis. Lester Roth and three other 'boys' were employed to dump and rack the bread. There were several windows in the bake-room, the bottoms of which were about three feet above the floor. Between 'oven runs' there were rest periods of about ten minutes each. It was hot in the bakery and, at these rest periods, the 'boys' went habitually to the windows to get the air and to cool themselves; and they often sat in the windows. Lester commenced work each day at 2:30 p. m. and quit at 11:30 p. m. On the occasion of the accident, he and another boy were at the window. Lester sat in the window, with one leg drawn under him and the other hanging downward. When he attempted to get out the window, he lost his balance, fell outside, and landed feet first on a platform about forty feet below. His feet were severely injured. The employer reported the accident to the Industrial Board as one that arose out of and in the course of the employment. The employer also furnished medical assistance to the injured employee."

In addition to the foregoing facts, the testimony relating to the special answer establishes without conflict the following:

"During the time Lester was employed, the foreman of the plant posted three typewritten notices forbidding the boys to sit in the windows. There was one other notice 'in writing.' No notice was posted at the window from which Lester fell. The notices did not remain up very long. They were torn down. No one knows who tore them down. The employer knew that the boys were in the habit of sitting in the windows. Ordinary fly screens were placed at the windows, but they were soon broken. Heavier screens could not be used because the windows served as exists to the fire escapes, and on account of the terms of the insurance. There were no notices posted and no screens at the windows at the time of the accident. The foreman, the superintendent, nor the manager of the plant was able to say that Lester ever saw any of the notices or that he ever knew of any rule against sitting in the windows. Lester was employed there about six weeks. The employer knew that whatever rule existed against sitting in the windows was not being enforced.".

Affirmed.

Samuel D. Miller, Frank C. Dailey, William H. Thompson, Albert L. Rabb, Thomas D. Stevenson and Perry E. O'Neal, for appellant.

Montgomery & Montgomery, for appellee.

DAUSMAN C. J. Nichols, J., dissents. McMahan, J., not participating.

OPINION

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 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...