BENTLEY et al.
Opinion adhered to in part and in part reversed.
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, by Norman S. Hull and John E. Madden, Phoenix, for petitioner Farley H. Hennessy.
Jennings, Strouss, Salmon & Trask and J. A. Riggins, Jr., all of Phoenix, for petitioner Fraternal Order of Eagles, Aerie 2407.
H. S. McCluskey, Phoenix (Robert E. Yount and Donald J. Morgan, Phoenix, of counsel), for respondents, The Industrial Commission of Arizona.
Guynn & Twitty, Phoenix, for Amicus Curiae.
De Concini, Justice. La Prade, J., concurs. Phelps, Justice (specially concurring). Udall, Chief Justice, (dissenting). Stanford, J., concurs.
De Concini, Justice.
[71 Ariz. 331] The Commission has filed a motion for rehearing asking the court to reconsider its opinion on the question of whether Hennessy was within the scope of his employment in making the trip to Tucson.
Without reciting the facts we adopt the same as reported in 71 Ariz. 181, 225 P.2d 43 and we adopt the law therein except where it is inconsistent with this opinion on rehearing. [71 Ariz. 332] We affirm our position that Bentley was not in the employ of the Aerie at the time he was killed; that Collins was an employee and within the scope of his employment at the time he was injured since he was acting under orders of his superior, Hennessy.
The control of the home, club rooms and buffet were in the Board of Trustees under Sec. 2, Art. 14 of the Constitution of the Aerie. The appointment of the secretary-manager was in the Board of Trustees by virtue of Sec. 17, Art. 14 of the Aerie's constitution which follows: "Appointment of Secretary-Manager. The Board of Trustees may by written agreement and only with the written approval of the Chief Auditor and for such period of time and upon such terms and conditions as the Chief Auditor may approve, engage and appoint the Secretary of the Aerie as Secretary-Manager of the Buffet and Social Rooms and properties of the Aerie and delegate to him such duties and authority as provided in such agreement; ...