Edren D. Erickson was in the employ of Salt Lake City as a truck helper in the Department of Streets and Public Improvements. He alleged that he sustained an injury arising out of or in the course of his employment by being struck by a city employee at the city garbage dump, causing him to fall on and break his leg.
From the evidence, the Industrial Commission, in substance, found the following: On August 26, 1941, while working at the garbage dump, and in response to the request of a fellow employee, L.T. Landram, the applicant proceeded to the edge of the dump where a number of screens were lying. Landram was the driver of a truck and Erickson was his helper. Landram said to Erickson that he would like to have some of a load of screens that were being dumped to screen paint for his own use, to which Erickson replied, "Shall I get some for you?" Landram said, "Yes." Erickson had gone to where the screens had been dumped at the edge of the dump, had picked up an armful of the screens and started to walk back to the truck.
At that time, Mr. Ames, assistant foreman, ordered Erickson to drop the screens. The two men engaged in a scuffle. The testimony is in conflict as to just what occurred. Erickson *Page 593 said Ames struck him first. This, Ames denies. During the scuffle both fell to the ground. Erickson's left leg was fractured at the ankle by the fall.
The testimony of Gus Dyer, foreman, and Ames, assistant foreman, is to the effect that rules had been posted and all employees informed orally that they were not to take any salvage from the dump without permission of the foreman or assistant foreman, and that certain shift men were entitled to take salvage as part of their pay. The applicant testified that he did not know of any rule which prohibited his taking materials from this dump. He stated he talked with the foreman some time before and was told that the salvage crew should have first chance at any salvage, but that he could take any materials not taken by them. Ames said he had no interest in the screens and did not claim they belonged to him, but merely tried to enforce the rules.
The Commission further suggests in the findings that
"had the scuffle been a result of dispute over the ownership of the screens we would be inclined to find the injury did not arise out of or in the course of employment * * * It is quite apparent that Ames approached Erickson with the intent to force him to drop the screens. * * * It seems to us that both participants were at fault, but resolving doubt in favor of applicant, we find that the injury arose out of and in the course of his employment and that he is entitled to an award."
There are sufficient facts presented to the Industrial Commission to support the conclusions reached. Put in another form, the employment must be and is recognized. Removing salvage from the dump was a part of the employer's activity as well as leveling and providing accessible means for dump or waste. The matter making the questions a close one, and upon which the Commission expressed doubt, is: Had Erickson departed from his employment upon an errand of his own?
The evidence is clear that he was not upon an errand in which he had any personal interest when he went for and was returning to the truck with some screens, at the request *Page 594 of the driver of the truck, his immediate superior, and whose helper he was. Under our statute, an applicant need show only that the injury arose out of or in the course of his employment. Sec. 42-1-43, R.S.U. 1933. In the case of Salt Lake County v.Industrial Commission et al., 101 Utah 167, 120 P.2d 321, at p. 323, the following statement is made:
"We have many times affirmed the principle that it is not our duty to say what inference or conclusion we would have drawn from facts presented to the Commission. Kent v. Industrial Comm.,89 Utah 381, 57 P.2d 724; Utah-Idaho Central R. Co. v.Industrial Commission, 71 Utah 490, 267 P. 785; ContinentalCasualty Company v. Industrial Commission, 75 Utah 220,284 P. 313. `Our duty is to examine the record and, unless we can say that as a matter of law the conclusion of the Commission on the question of "course of employment" was wrong because only the opposite conclusion could be drawn from these facts, to affirm.'Wherritt v. Industrial Commission, [100 Utah 68],110 P.2d 374, 376."
The injury occurred during the hours applicant was on duty and at the place his work required him to be. He was waiting for orders when his immediate superior asked him to get some of the screens. There was such relationship between the two employees that it would be unusual if either asked the other to do what was done, that the other would refuse. The position of the prevailing opinion destroys harmony and co-operation of employees and impairs efficiency.
We need not discuss the facts of the scuffle. The evidence as to who was the aggressors in direct conflict, but the Commission resolved the doubt in favor of applicant and found that Ames, in his capacity as assistant foreman and in an attempt to enforce the rule, was the aggressor, but both were at fault. In my opinion, the momentary digression, if such there were, does not constitute a departure from the employment and does not justify our overturning the conclusion of the Commission.
I think the award of the Commission should be affirmed.
PRATT, J., on leave of absence. *Page 595