I dissent. I think there are two errors in the prevailing opinion. The first is with respect to the findings of the commission. I doubt that what the commission put in the record in its decision can be called, or was intended to be, findings at all. It consists of a summation of the evidence as the commission interpreted its meaning, that is the rationale of the commission on the evidence, so the parties and any one interested can understand how the commission arrived at its decision. It is merely scenery sketching — that is, word painting the scene as it appeared to the commission. And I think this furnished a better ground for understanding the decision than would formal finding.
We have held that the commission need not make any findings. That in the absence of findings we will presume that had they been made, they would have been such as to support the decision; that it cannot be assumed the commission would have entered a decision contrary to what they believed the facts to justify.Denver R.G.W.R. v. Industrial Comm., 66 Utah 494,243 P. 800; Moray v. Industrial Comm., 58 Utah 404, 199 P. 1023;Jones v. Industrial Comm., 90 Utah 121, 61 P.2d 10; Amer.Smelting Ref. Co. v. Industrial Comm., 79 Utah 302,10 P.2d 918.
If, therefore, we view the statement of the commission as in effect an effort to state findings of fact, why should we *Page 591 assume a construction of them that would not support, but would upset the decision and award made? The opinion says,
"we cannot assume that the Commission, if it had made a finding on this issue, would have resolved the conflict in favor of the applicant."
Yet that is exactly the assumption we make in every case where there are no findings. The opinion also states that the purported finding is open to two interpretations, and argues that under either of them, the award must be annulled. The writer thinks that under one interpretation the award should be affirmed. Our duty then is clear — to adopt the construction that will sustain the order of the commission. If under any reasonable construction of the evidence, [or the findings] the order of the commission can be upheld, it is our duty to uphold it. Continental CasualtyCo. v. Industrial Comm., 75 Utah 220, 284 P. 313; TinticStandard Min. Co. v. Industrial Comm., 100 Utah 96,110 P.2d 367; doctrine applied without comment by the court in Russell v. Industrial Comm., 86 Utah 306, 43 P.2d 1069, and Pace v.Industrial Comm., 87 Utah 6, 47 P.2d 1050.
The other point of difference is as to whether applicant had departed from the course of his employment. The opinion seems to hold that if applicant knew of the rule that things could not be salvaged from the dump, he would have departed from his employment at the time of the altercation with Ames. It is interesting to note that applicant was not the one who made the proofs as to the cause of the fracas. That proof was deliberately put in by the employer, to establish the fact — which applicant did not then contradict — that the row and fight arose over an effort on the part of Ames to enforce a rule of the work, a rule governing the conduct of the employees while at, and about, their work. If the fight arose in enforcing a rule governing the actions of an employee in the doing or performing of his employment, how can it be said the employee was not in employment, *Page 592 or in the course thereof at such time? Had the commission found, or had the city contended, or did the opinion argue that this fight was a personal affair, a grudge fight, unrelated to what the men were doing, or the manner in which they were doing their work, that would be a horse of a different color. But where a fight ensues between a foreman and an employee, at the place of work, because the foreman is trying to make the employee conform to certain rules as to what he may do, and how he shall do it, there is just no escape from the fact that the man was in employment at the time. The commission so indicated, their decision in effect so declares, and there is evidence to sustain it. I therefore dissent.