I am unable to agree with the majority.
The record discloses that the deceased was in the *Page 76 employ of one Sam Bulldis, who, for a number of years prior to the accident here involved, conducted a fish market on Eleventh street in the city of Tacoma, where he sold salmon, shell-fish, oysters and shrimps. About four months prior to the accident, Bulldis endeavored to get the city health department to permit him to open and can oysters at his place of business. This was refused for sanitary reasons.
At the suggestion of the health department, Bulldis then established a small plant on the water front within the city limits. Bulldis bought the oysters, in the shell, at Bay Center, whence they were brought in trucks to the plant and there opened and canned. The oysters, thus processed, were then delivered to Bulldis' place of business on Eleventh street, where they were either sold at retail or else distributed to other fish markets.
Although it may not be of controlling importance, it may be said, incidentally, that Bulldis never paid any insurance premiums on any part of his business.
From the facts hereinbefore stated, I do not believe that it can reasonably be held or said that Bulldis was engaged in the oyster industry, within the meaning of the statute or within the classification made by the department.
It will be observed that the classification under class 33-2 is ". . . oyster industry (includes all operations)," and not merely oysters (includes all operations), that is to say, the classification pertains to an industry and not simply to an article of food; or, in other words, the protection afforded by the statute and classification covers a particular industry and not the various activities pertaining to a product of the industry.
I may illustrate the thought that I have in mind in this particular instance by reference to several large *Page 77 and important industries in this state, applying to them an assumptive terminology similar to that actually used in the above classification with respect to oysters.
Take, first, the wheat industry. Were there such a general classification inclusive of all operations, it surely could not be said that the miller, the processor, or the baker, who handles wheat products, was engaged in the wheat industry within the meaning of such classification.
Take, next, the fruit industry, similarly described. Under such general classification, one who prepared the fruit for sale or consumption, after purchase from the grower, would not be included in the act. Again, were there a like classification of the cattle industry, it would not, under that heading, include the butcher or the packer. The same could be said of the chicken industry.
Consider, also, the timber industry and its operations. If it were classified as such, it certainly would not include the operations of the sawmill making lumber out of timber that had been bought from or through a logger.
Whatever specific classification might be made by the department of these secondary activities, they would not, in my opinion, fall within the larger, general classifications of primary industries.
The term "the oyster industry (includes all operations)," as I view it, has reference to the cultivation and harvesting of oysters and whatever is necessary thereto. What occurs thereafter is merely a manufacturing, processing, or merchandising activity, having an incidental, but not a necessary, connection with the operation of the industry itself as such. It may be conceded that, where the successful conduct of the industry would necessarily include some activity which, *Page 78 separately, would take on an independent character, the entire business or operation might well come within the statute. But that is not the case here. While it is necessary that oysters be opened in order to prepare them for preservation and consumption, that process is not a part of the oyster industry itself.
The majority opinion, it seems to me, expresses an undue disturbance over the thought that, if the producer processes the oysters, such processing would be considered a part of the oyster industry, while, if the independent operator did the same thing, it would not be considered as a part of the industry. The answer to this reasoning, it seems to me, is two fold: (1) Assuming that a major operation includes a lesser one intimately connected with it, and forming a part thereof, it does not follow that the lesser operation, if distinct from the greater, nevertheless must be considered in the same category; (2) if, in connection with a primary operation, large in extent and coming within the act, a separate and distinct activity be engaged in, the minor activity would not be a part of the primary operation, necessitating that the lesser come within the classification of the greater, nor would the workmen's compensation act afford protection in the minor activity, even though conducted by one who in other respects is within the act, unless the minor activity comes within some specific classification covering it.
For the reasons given, I am compelled to dissent. *Page 79