Award set aside.
Axline & Shelley, of Holbrook, for petitioner.
Robert E. Yount, Phoenix, H. S. McCluskey and Donald J. Morgan, Phoenix, of counsel, for respondent Industrial Commission of Arizona.
La Prade, Judge. Udall, C. J., and Stanford and Phelps, JJ., concurring. De Concini, Justice (dissenting).
La Prade, Judge.
[72 Ariz. 275] Review by certiorari challenging the award of the Industrial Commission denying claims of widow and minor children for benefits under the Workmen's Compensation Act, A.C.A.1939, § 56-901 et seq., on account of the death of Elmer Leslie Gardner, husband and father, respectively, of claimants. Deceased was employed by the town of Holbrook, Arizona, as town clerk at the time of his death on February 11, 1950. Benefits under the Act were denied upon the ground that the death by accident did not arise out of and in the course of the employment.
Briefly, the facts disclose that Mr. Gardner's death grew out of an airplane accident at a time when he was returning from Yuma, Arizona, to Holbrook. No question is made of the fact that he was traveling by the most direct route and that travel by aircraft is an accepted means of travel. At the time of, and for some
years prior to, his death Mr. Gardner occupied the office of town clerk, chief administrative and public relations officer of the town. As chief administrative officer of the town, he was in charge of the town's proprietary businesses, to-wit: electric light and power system, water and sewerage systems. The evidence discloses that a large proportion of the taxable real estate in said town is supported by tourist trade and that a considerable portion of the revenue from its proprietary enterprises is directly due to the tourist business within [72 Ariz. 276] the town. It is also worthy of noting that the various municipalities of the state receive a distributive share (10%) of all privilege taxes (sales taxes) collected under the Excise Revenue Act of 1935 in proportion to their population. See Section 73-1322, A.C.A.1939 Cum.Supp., as amended by Initiative Measure Sec. 1, 1942. It is a matter of common knowledge, of which this court takes judicial notice, that the economy of all the towns in northern Arizona along U. S. Highway 66 is geared into and largely dependent upon tourist business. America is a nation on wheels. A town's hotels, motor inns, restaurants, gasoline filling stations, garages, allied industries and services are an integral part of and essentially necessary in making it possible for the traveling public to cross the nation with the ease and facility that the American public demands. To meet the demands placed upon it, the common council and chamber of commerce of the town were very attentive and sensitive to its obligation and the opportunities afforded. The deceased, in addition to his duties as chief administrator of the town's proprietary functions, was also its public relations officer. It was in connection with forwarding these activities of the town that Mr. Gardner attended a convention of the Secretaries of Chambers of Commerce of the towns and cities of Arizona, which was held at Yuma. In connection with attending this meeting, Mr. Gardner went in the company of Mr. Arthur E. Austin, who was Secretary of the Chamber of Commerce of Holbrook and who piloted the airplane in which they were traveling at the time of the fatal accident.
Prior to leaving on the trip, Mr. Gardner had secured the individual consent of the mayor and members of the common council. The evidence shows definitely that the mayor had been given (prior to the authorization to Mr. Gardner to make the trip to Yuma) full authority by the common council to authorize any and all action on behalf of the town in which large expenditures were not involved. Subsequent to the death of the deceased, the town council passed a formal resolution ratifying the trip of Mr. Gardner and authorizing payment of the expenses incurred by him, and his salary to and including the date of his death.
It is the contention of the respondent, Industrial Commission, that the town council was without jurisdiction under the law to ratify the oral authorization of the mayor in order to bring the claims in question within the requirements of the compensation law. In this behalf, respondent calls attention to the fact that at a regular meeting of the town council held on February 8th (two days prior to the departure of Mr. Gardner), no formal action or authorization was taken authorizing the trip. This deficiency in the record was explained by the fact that at this regular meeting on February 8th, and shortly after it began, the mayor was called from the meeting due to [72 Ariz. 277] a death in his family, and that as a result thereof, there was some confusion and lack of attention to details.
The position of the Industrial Commission is bottomed solely upon the proposition that there was no formal authorization by resolution made and adopted prior to the time that the trip was undertaken. It is conceded by the commission that the interests of the town and the Holbrook Chamber of Commerce are identical in many respects but it insists the town is a governmental agency and that the powers of municipalities and their officers are statutory and there being no specific provision authorizing ...