¶1(dissenting).
¶2I dissent to the majority holding that a denial of discovery of the transcript of testimony would cause prejudice, undue hardship or injustice. I do not think the record is in shape to so hold.
¶3No findings of fact loere prepared by counsel nor signed or filed by the trial court. After listening to oral argument, the trial court stated into the record his reasons for granting the motion for discovery as follows:
“The decision of the court on this matter is that the transcript of the testimony referred to in the affidafits, and the testimony of the witnesses on this hearing, is not a writing obtained or prepared by the defendant company, or any one or more of its agents, in anticipation of litigation. And the reason why I so determine is that the purposes of the defendant company in holding the hearing were varied; they included among other things a determination of the facts of the happening, the fixing of the responsibility, if any, on any person for the occurrence of the incident, for the purpose of correcting any physical defect that might exist in the operation of the railroad, if any existed, for the purpose of providing the Interstate Commerce Commission with information concerning the incident if any such request was made, and for the further purpose of making a record of the facts and the circumstances of the incident in the event that the defendant company needed to use the information thereby obtained for any purpose, including the defense of any lawsuit.”
¶4Plaintiff’s motion to produce the documents is made pursuant to Rule 34 and subject to the limitation of Rule 30 (b), Utah Rules of Civil Procedure. The pertinent limitation of Rule 30 (b) states:
“The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in prepa*20ration for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice.”
¶5Having granted the motion because anticipation of litigation was not the primary purpose in preparing the transcript of testimony, it became unnecessary for the trial court to consider the question whether the denial of production would cause undue hardship or injustice.
¶6This court in the course of a prolonged consideration of this case has pondered whether the transcript was prepared in anticipation of litigation but the evolution of argument now brings us to the exception thereto, the question of undue hardship or injustice. The issues of what constitutes undue hardship or injustice require a decision and findings upon questions of fact. This court is the tribunal which will ultimately make authoritative interpretation of its own rules. But our interpretation must arise out of factual situations developed in lower tribunals. And those fact situations must be fixed by findings. This court cannot roam over the record resolving contradiction of testimony to determine wherein lies the truth and then after we have found the facts interpret the rules on those facts found by us. In this case the affidavits and testimony concerning these issues are contradictory, but we have not the witnesses before us. Sufficient facts are contained in the record to support a factual conclusion in favor of either plaintiff or defendant. However, it is not the function of this, an appellate and reviewing court, to make findings of fact. Article VIII, Section 4, of the Constitution of Utah states:
“The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus. … In other cases the Supreme Court shall have appellate jurisdiction only, and power to issue writs necessary and proper for the exercise of that jurisdiction.”
¶7*21Article VIII, Section 9, states:
“From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court. The appeal shall be upon the record made in the court below and under such regulations as may he provided by law. In equity cases the appeal may be on questions of both law and facts; in cases at law the appeal shall be on questions of law alone.”
¶8The new Rules of Civil Procedure have not dispensed with the necessity of findings of fact being drawn as the basis of the decision from which an interlocutory appeal is allowed. In law cases, the constitution limits the scope of appeals in this court to a determination of whether the findings of fact are supported by the evidence and whether the law has been correctly interpreted or applied by the trial court. In the words of the constitution,
“… in cases at law the appeal shall be on questions of law alone”; “… the Supreme Court shall have appellate jurisdiction only …”.
¶9The majority of the Court takes the position that
“where issues of fact are involved and there are no findings of fact, we do not review the facts but assume that the trier of the facts found them in accord with its decision, and we affirm the decision if from the evidence it would be reasonable to find facts to support it.” (Emphasis added.)
¶10The “decision” of the lower court was that the transcript was not prepared in anticipation of litigation. This court heretofore has invoked the rule that:
¶11“Even though the trial court entered its judgment upon an erroneous basis, still, if such judgment is properly supported upon some other basis which is disclosed by the pleadings and evidence, we should not reverse it.” Ralph A. Badger & Co. v. Fidelity Building & Loan Ass’n, 94 Utah 97, 117, 75 P. 2d 669, 678.
¶12But this can be done only if the findings of fact that are made support another legal theory as well as the conclusions of law on which the trial court bottomed its judgment.
¶13*22I have set out above the trial court’s remarks to the effect that the motion was granted because the transcript was not obtained in anticipation of litigation. These remarks indicate the reason why the motion was granted. It is also the only part of the record which may be construed as findings of fact.
¶14Under this state of the record, this court cannot assume that the trier of facts found that denial of production would cause undue hardship or injustice. The trial court did not consider that question. It never even reached it. It found that the transcript was not prepared in anticipation of litigation. Because of the very wording of the rule itself, it was unnecessary to proceed to determine whether any hardship or injustice might exist if discovery were not allowed. By implication that question was excluded. The question of anticipation of litigation and whether denial of the transcript would cause undue hardship or injustice are entirely different. Logically, the lower court would first determine whether the hearing of which a transcript was demanded was in anticipation of litigation; if that was found in the negative as in this case there would be no need of determining the question of hardship. The motion could be granted on either of these two grounds but the mere fact that it was granted does not by implication mean that the trial court found that, even if the transcript was not prepared in anticipation of litigation, that it would nevertheless cause undue hardship or injustice if its discovery were not allowed. As I understand the rule on appeal, we should take all conflicts in the evidence most favorable to respondent concerning whether the preparation of this transcript was made in anticipation of litigation. But we are extending the scope of this appeal beyond proper limits when we state what the facts of the case are concerning an additional-ground for granting this, motion, which was not considered, nor ruled upon, nor impliedly contained in the order of the trial court.
¶15*23The general rule is stated in Volume 5, C. J. S., page 418, as follows:
“Implied Findings
“In support of a judgment, findings of the material facts essential to sustain it may be implied where sufficient evidence is present in the record and the implication is not inconsistent with, or in contradiction of, the record.”
“Limitations of rule. A finding will not be implied where it would be clearly wrong to do so, as where it would be in contradiction of the record, or where the likelihood exists that to do so would thwart the intention of the trial court, or where the counsel have agreed that there shall be no findings, or where the court has expressly refused to find the particular fact. Further, the doctrine of implied findings will not be applied as to matters upon which the court has made a direct finding, or a finding which precludes the inference, or where the fact is not fairly inferable from the facts found.
“It will not be presumed that the trial court found a particular fact where to do so would result in a reversal of the judgment, or where the record shows that the judgment was expressly based on the findings made, or where the finding presumed would be inconsistent with the findings made; where a special statute applicable to the case required certain facts to be set forth in the judgment; where the case is one in which no findings are required; or where the findings made are not within the pleadings.” (Emphasis added.)
¶16The record with which we are here concerned shows that the order of the court was based on the findings made; that the transcript was not prepared in anticipation of litigation. Nothing was determined about any resulting hardship or prejudice if discovery were not permitted. The trial court’s ruling does not contain any such implied factual basis.
¶17The Supreme Court of the United States in the case of Kelley v. Everglades Drainage District, 319 U. S. 415, 63 S. Ct. 1141, 1144, 87 L. Ed. 1485, had before it a record which did not contain sufficient findings to show the fairness of a plan for the composition of the debts of the bankrupt. The court stated:
*24“To support such determination [of fairness in the plan of allotment to each class of creditors], there must be findings, in such detail and exactness as the nature of the case permits, of subsidiary facts on which the ultimate conclusion of fairness can rationally be predicated.
“The findings in the present case fall short of that requirement.
… ❖ …
“It may be that adequate evidence as to these matters is in the present record. On that we do not pass, for it is not the function of this court to search the record and analyze the evidence in order to supply findings which the trial court failed to make. Nor do we intimate that findings must be made on all of the enumerated matters or need be made on no others; the nature of the evidentiary findings sufficient and appropriate to support the court’s decision as to fairness or unfairness is for the trial court to determine in the first instance in the light of the circumstances of the particular case. We hold only that there must be findings, stated either in the court’s opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.
“Since the state of the record is such that a proper determination' of the questions of law raised by petitioners’ contentions as to the treatment of class II creditors cannot be made in the absence of suitable findings, the petition for writ of certiorari is granted, the judgment is vacated, and the cause remanded to the District Court for appropriate action in conformity with this opinion.” (Emphasis added.)
¶18It will be noted that in this case the Supreme Court of the United States did not permit the judgment to stand without adequate findings of fact to support it.
¶19In Jones v. Industrial Commission, 90 Utah 121, 61 P. 2d 10, this court held that though the commission is not required to make written findings of fact, the case would be remanded to the commission where it was impossible to dispose of the case on its merits until the ambiguous finding involved had been clarified. And in Salt Lake City v. Industrial Commission, 103 Utah 581, 137 P. 2d 364, 367, we stated that this court
“cannot assume that the Commission, if it had made a finding on this issue, would have resolved the conflict in favor of the [successful] applicant.”
¶20*25In the case of Farrell v. Cameron, 98 Utah 68, 94 P. 2d 1068, 1069, the plaintiff recovered a judgment in the trial court, sitting without a jury, for injuries sustained in an automobile collision. The opinion of this court states:
“The court failed to find on which side of the road the defendant’s car was at the time of the collision. We cannot assume facts against the defendant, and so we will assume that all of his car was on the right side of the center line of the road.”
¶21To follow the principle embraced in this language would mean that no prejudice or hardship is shown in the present record.
¶22In Thomas v. Farrell, 82 Utah 535, 26 P. 2d 328, the judgment was reversed and the case remanded to the district court with directions to grant a new trial in order to make findings on all the facts necessary to sustain a judgment.
¶23This opinion arises out of the first case in this jurisdiction construing a new rule of discovery. The limitation of Rule 30(b) was not included in the Federal Rules. The issue as to what facts may be assumed to be true, when an appeal is taken to this court and no findings of fact appear in the record, is neither technical, captious nor trivial. It is highly important for this court in the application of this rule to know what the lower court found to be circumstances of hardship. Discovery of a document prepared by an adverse party in anticipation of litigation is a very important and fundamental procedural device. The limitation which was intended to protect the parties to a lawsuit should not be swept aside by the assumption of facts in this court which were not found to exist and are not inferentially contained in the order of the trial court.
¶24Therefore I believe the opinions of this court should either be limited to the issue of anticipation of litigation or it should be remanded to the trial court to make findings of fact upon the matter of undue hardship and prejudice, and to take additional testimony if so advised.