[79 Ariz. 279] Gust, Rosenfeld, Dibelbess & Robinette, by Harold L. Divelbess, Phoenix, for petitioner.
John R. Franks, Phoenix, for respondent The Industrial Commission of Arizona, Donald J. Morgan, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel.
The sole question presented on this review of an Industrial Commission award is whether a volunteer member of a civil defense mobile unit under the Civil Defense Act of 1951, Ch. 100, S.L.1951, and now appearing as Sec. 64-501 in 1952 Cum.Supp., A.C.A.1939, is entitled to compensation and accident benefits under the existing provisions of the Arizona Workmen's Compensation Law.
The undisputed facts are these: petitioner Leslie Ferrell was a regular employee of Republic-Gazette Newspaper Enterprises in Phoenix, Arizona. During the latter part of July or early August of 1951, petitioner signed up for participation in the Arizona civil defense program and was assigned to the mobile support unit of the City of Phoenix police department. He did not receive any remuneration for any time spent in this activity and was not on the regular payroll of the State of Arizona or any political subdivision thereof. His time spent in connection with the civil defense program was devoted to training, and he would ride with the Phoenix police officers in connection with their routine calls and duties during hours when he was not engaged in working for his regular employer. On August 15, 1951, some two weeks after he had entered into the training[79 Ariz. 280] program, petitioner was riding with an officer of the police department when a flooding of property was reported on East Van Buren Street. They went to investigate and under direction of the officer, petitioner claimbed upon a roof in an attempt to turn off a valve. In getting down from the roof he fell to the ground, injuring his back, elbow and wrist.
A claim for compensation was timely filed with the respondent Industrial Commission. Later an award denying compensation and an order dismissing said petition was entered. Petition for rehearing was filed and a rehearing granted at which additional testimony was taken. Thereafter on December 29, 1954, the respondent Commission handed down its decision upon rehearing in which it adhered to its former ruling.
Petitioner's single assignment of error reads:
'The Industrial Commission erred in finding that at the time of the injury Petitioner was not an employee of the State of Arizona, or of any political subdivision thereof within the terms of the Arizona Workmen's Compensation Act, for the reason that such finding is contrary to law.'
He argues in support thereof that under the provisions of the Civil Defense Act of 1951, supra, volunteer workers are on an equal footing with paid employees of the civil defense authorities. However, to be entitled to compensation under the pertinent section of the Workmen's Compensation Act, S.L.1949, Ch. 76, Sec. 1, p. 153, now appearing as Sec. 56-929, Cum.Supp. of 1952, A.C.A.1939, petitioner must show that he comes within its provisions, since it is the basic requisites of this section which determine persons included thereunder as employees.
The legislature, in defining the term 'employee', specifically states, Sec. 56-929 (a), supra, that it means:
'1. Every person in the service of the state, or of a county, city, town, municipal corporation, or school district, including regular members of lawfully constituted police and fire departments of cities and towns, whether under election, appointment or contract of hire * * *.' (Emphasis supplied.)
It is to be noted that this part of the Act makes no reference to volunteer workers. This would seem to require more than mere voluntary service as an essential feature of the employment relationship. The injured person must be under a legal duty to do the acts being performed when he is injured. A study of the above and other provisions of the Workmen's Compensation Law indicates that regardless of the manner in which the employment relationship arises-whether by reason of 'election, appointment or contract of hire'-[79 Ariz. 281] some form of duty to serve and remuneration therefor must exist before one may be considered an employee of the state.
In his work on the subject, The Law of Workmen's Compensation, Vol. 1, Sec. 47, page 686, Larson states that a contract of hire, express or implied, is essential to create an employment generally, and the word 'hire' connotes payment of some kind. He points out that among the consequences of this requirement are:
'(c) gratuitous servants are not employees, since the element of 'hire' is lacking; but payment may be found in anything of value, ...