BENTLEY et al.
Judgment in accordance with opinion.
V. L. Hash and Virginia Hash, Phoenix, for petitioner Thomas M. Collins.
Charlie W. Clark and Marshall W. Haislip, Phoenix, for petitioner Oran L. Bentley.
Evans, Hull, Kitchell & Jenckes, Phoenix, by Norman S. Hull and John E. Madden, Phoenix, for petitioner Farley H. Hennessy.
Jennings, Strouss, Salmon & Trask and J. A. Riggins, Jr., Phoenix, for petitioner Fraternal Order of Eagles, Aerie 2407.
H. S. McCluskey, Phoenix (Robert E. Yount and Donald J. Morgan, Phoenix, of counsel), for respondent Industrial Commission of Arizona.
Guynn & Twitty, Phoenix, for Amicus Curiae.
Udall, Justice. La Prade, C. J., and Stanford, and De Concini, JJ., concur. Phelps, Justice (dissenting).
[71 Ariz. 183] This case is before the court on certiorari from the Industrial Commission to review an award denying compensation under the Workmen's Compensation Act for the death on April 21, 1949, of Oran L. Bentley and Farley H. Hennessy and the serious injury of Thomas M. Collins. The facts which are not seriously in controversy, and out of which this proceeding arose, may be stated as follows: Fraternal Order of Eagles, Aerie No. 2407, hereafter called the Aerie, is a fraternal organization existing under Ch. 61, Art. 9, A.C.A.1939. It is a subordinate lodge of the Grand Aerie F.O.E. and subject to its own constitution and the constitution, rules and regulations of the Grand Aerie. Almost from its organization in 1944 the local Aerie has been in such difficulties as to require the frequent intervention of the Grand Aerie. In May, 1948, the chief auditor of that body directed Ralph Bentley to take charge of the Aerie under Art. 52, Sec. 19 of its constitution, which reads as follows: "Section 19. Emergency Administration. Whenever in the opinion of the Grand Worthy President and the Board of Grand Trustees any Subordinate Aerie, or any of its officers, shall for any reason fail to function under the lawful procedure provided by our laws, the Grand Worthy President on approval of the Board of Grand Trustees is authorized to remove any or all of its officers and to direct the Chief Auditor to assign a representative of the Grand Aerie to take full charge of such Aerie's affairs until a full complement of officers shall have been appointed or elected under the direction of the Chief Auditor. Such Aerie and officers shall be under the direction of the Grand Aerie representative until the Chief Auditor is assured that such Subordinate Aerie will faithfully and properly conduct its affairs in accordance with all required and ordained procedure of the Order." (Emphasis supplied.) At that time Oran Bentley was secretary of the Aerie and manager of its buffet and he remained as such, being advised by Ralph Bentley, until March 22, 1949, when the secretary wrote the chief auditor asking for further assistance. The chief auditor appointed W. J. Fitzgerald for this purpose. The latter, after a discussion of conditions with Oran Bentley and James Day, president of the local Aerie, addressed a lengthy letter, accompanied by Bentley's written resignation, to the local Aerie under date of April 12, 1949. This letter, which recited the past difficulties of the local, read in part as follows:
"Brother Bentley's resignation will be accepted by the Chief Auditor with regret; certainly Brother Bentley has given time [71 Ariz. 184] and energy to trying earnestly to fulfil the requirements of a Secretary. One of the most important parts of a Secretary's work is to maintain the financial records correctly. Without an accurate accounting, the Aerie will go broke.
"Secretary Bentley's resignation is effective April 15, 1949. Brother F. H. Hennessy of Phoenix, Arizona and a member of Olympia, Washington, Aerie # 21 is directed by the G. W. P. and C. A. to serve as Secretary Manager to manage the affairs of the Aerie, pursuant to Article 52, Sec. 19 of the C. S. A.
"We sincerely hope that each and every member of Phoenix Aerie will cooperate with Brother Hennessy In the management of the Aerie. With best wishes --
"W. J. Fitzgerald
"Deputy Grand Worthy President"