To constitute a valid estoppel by conduct there must be knowledge on the part of the party sought to be estopped and a want of knowledge on the part of the party relying on the estoppel. Fletcher, supra; Scranton v. Stewart, 52 Ind. 68, 96; Robbins v. Magee, 76 Ind. 381, 388; Anderson v. Hubble, supra; Cole, Adm'r, v. Lafontaine, 84 Ind. 446; Junction R. Co. v. Harpold, supra; Baker v. Union, etc., Life Ins. Co., 43 N. Y. 283; Gove v. White, 20 Wis. 447.

In so far as we are advised by the complaint appellant at all times knew that appellee and her husband owned the lot in question by the entireties and knew the limitations on the power of the husband to make any contract or conveyance of the same so as to affect the rights of appellee after the death of her husband. We must therefore assume that appellant at all times knew all the facts and knew as a matter of law that the contract made by the husband alone was not binding on appellee. If appellant had actually believed Mr. Silcox was the owner of the land and entered into the contract under that belief, and in good faith made the expenditures of a large sum of money, and appellee had stood by knowing her husband was representing and holding himself out to appellant as the owner, and if appellant had no knowledge of the truth, we would have a different case before us.

The allegations concerning the payment of money to appellee after the death of her husband are not sufficient to sustain an estoppel.

It is only by inference that we can say appellant transported any cars Over the switch after the death of Mr. Silcox. If it transported any, we ask, How many? It may have been one or it may have been more. Conceding that appellant did pay appellee $1 for a car transported over the switch after the death of the husband, that certainly would not be sufficient to create an estoppel. Waiving the question of want of knowledge on the part of appellant, there is no claim that the receipt by appellee of the money after the death of her husband placed appellant in a worse position than it was in before such payment was made.

The court was clearly right in sustaining the demurrer to the several paragraphs of complaint.

NICHOLS, J. I do not concur in the opinion of the majority of the court in this case. It may be true that the complaint is not as specific in its averments as it should be, but I think it is sufficient, in the absence of a motion to make more specific, to withstand appellee's demurrer. It appears by the con

plaint, that appellee's husband represented that he was the owner of the real estate here involved, and there is nothing to suggest that the title was by entireties. It appears by the averments of the complaint that appellee was fully informed as to the contents and nature of the contract. It further appears that appellant, in reliance upon the contract, expended $50,000 in the construction of a building to which it could have free access only across the real estate involved, under the terms of the contract, and that plaintiff knew that such work was done and expenditure being made in reliance upon the contract. It is a necessary inference that, if appellant knew at the time that the title to the real estate was held by the entireties, it did not and it could not rely upon the contract and under such circumstances, and, in the absence of a motion to make more specific, this is a sufficient averment of no knowledge of the title by the entireties. Appellee did not have to say anything or do anything in order to mislead appellant. Her standing by without objection and permitting appellant to go forward with the work and expenditure with knowledge that it was so doing was sufficient to work an estoppel as against her. Fletcher v. Holmes, 25 Ind. 458, 470; Hubble, 93 Ind. 570, 575, 47 Am. Rep. 394; Roach v. Clark, 28 Ind. App. 254, 62 N. E.

634.

Anderson v.

NATIONAL BISCUIT CO. v. ROTH.
(No. 11999.)

(Appellate Court of Indiana. Jan. 30, 1925.)

1. Master and servant ~417(7)—Industrial Board's conclusion on evidential facts not disturbed.

If Industrial Board, in determining ultimate fact, reaches legitimate conclusion on evidential facts, Appellate Court will not disturb such conclusion, though it prefers another equally legitimate; whether evidence sustains finding and latter sustains award being only ultimate questions which may be presented on appeal.

2. Master and servant 348-Compensation Law liberally construed.

Words "arising out of and in the course of employment" in Workmen's Compensation Act must be liberally construed.

3. Master and servant 375(1)—Injury to employé, falling from window during rest period, held compensable as "arising out of and in course of employment."

by fall from window, to which he had gone for Injury to employé in bakeroom of bakery relief from heat and for fresh air, during rest period, as expected by employer, held to have "arisen out of and in course of employment"; acts necessary to comfort and convenience of

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

4. Master and servant 375 (1) -Employé doing what he might reasonably have been expected to do not without scope of employment.

Employé will not be deemed to have abandoned employment or withdrawn himself from scope thereof if, at time of injury, he was doing what he might reasonably do or reason

"That he willfully 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 willfully 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

of working place and nature of work.

5. Evidence 14-Incautious tendencies of youth matter of common knowledge.

Tendencies of youth, such as fact that boys are not as cautious as persons of mature years, are matters of common knowledge, which Industrial Board may consider in determining whether youthful employé abandoned service by sitting in window during rest period.

6. Master and servant 403-Burden on employer to prove employé forfeited compensation by failure to obey rule.

Burden of proving averments of special answer that employé forfeited compensation under Workmen's Compensation Law, § 8, by willful failure or refusal to obey employer's reasonable written or printed rule, posted in conspicuous place, is on employer.

7. Master and servant 416 Industrial Board's failure to make finding equivalent to adverse finding.

Industrial Board's faliure to make finding on point raised by employer's special answer as to forfeiture of compensation by willful failure or refusal to obey posted rule, within Workmen's Compensation Law, § 8, is equivalent to finding against employer. 8. Master and servant

385(19)-Compensation for 500 weeks for total disability employé held not excessive.

Award of not to exceed 500 weeks' compensation to employé, whom Industrial Board found was totally disabled for work, held not excessive, being subject to modification when ever he sufficiently recovered to engage in remunerative employment.

Nichols, J., dissenting.

Appeal from Industrial Board.

Proceedings by Lester Roth, employé, for compensation for injuries under Workmen's Compensation Act, opposed by the National Biscuit Company, employer. From an award of compensation by Industrial Board, the employer appeals. Award affirmed.

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

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 bakeroom, 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 tempted to get out of the window, he lost his the other hanging downward. When he atbalance, fell outside, and landed feet first on a platform about 40 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 employé."

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 The employer knows who tore them down. knew that the boys were in the habit of sitting in the windows. Ordinarily fly screens were placed at the windows, but they were soon broken. Heavier screens could not be used because the windows served as exits 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."

Miller, Dailey & Thompson, of Indianapolis, for appellant.

Montgomery & Montgomery, of Seymour, for appellee.

DAUSMAN, C. J. (after stating the facts as above). [1] 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 pre sented 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.

[2] 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.

[3] We have no difficulty whatever in reaching the conclusion that in the case at bar the employé 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 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. Holland, etc., Co. v. Shraluka (1917) 64 Ind. App. 545, 116 N. E. 330. See, also, cases collected in Artman's Manual, p. 55.

[4] The difficulty arises when we come to determine what ought to be the effect of the employé's conduct in sitting 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 preceillustrative cases see L. R. A. 1916A, p. 236 dents, although they may be persuasive. For et seq. It follows that as a matter of neces sity each case must stand on its own peculiar facts. Indian, etc., Co. v. Wehr (1920) 74 Ind.

App. 146, 127 N. E. 202, 128 N. E. 765. Howsomewhat helpful: An employé will not be ever, the following general statement may 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 reasonably have been expected to do (Marion, etc., v. Ford [Ind. App.] 144 N. E. 552) 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, etc., Co. v. Davis, [1917] 64 Ind. App. 227, 115 N. E. 676). As illustrative of the liberality of the courts in this regard see Ansted, etc., Co. v. Ayres (1919) 69 Ind. App. 160, 121 N. E. 446; Granite, 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, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641.

[5] 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 window sill 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.

[6, 7] The second question to be determined is whether the employé forfeited compensa