I concur in the result of the majority opinion, for the following reasons:
Respondent does not come within the immunity afforded by the proviso of Rem. Rev. Stat., § 7675 [P.C. § 3470], quoted by the majority, because at the time of the accident involved in this action respondent was not "in the course of any extra-hazardous employment under this act," meaning the workmen's compensation act.
Rem. Rev. Stat., § 7674 [P.C. § 3469], enumerates extrahazardous employments, but expressly limits them to such as "are within the legislative jurisdiction of the state." Whatever jurisdiction the legislature may have exercised formerly, under the provisions of the original act, Laws of 1911, chapter 74, § 18, p. 367, over railroads or common carriers by railroad doing "interstate, foreign and intrastate commerce," that jurisdiction was definitely disclaimed by the legislature in subsequent amendatory acts in which it was expressly stated that, for specific reasons, the provisions of the original act should not apply to work performed by the employees of such railroads or common carriers in the maintenance and operation thereof or performed in the maintenance or construction of their equipment, or to employees engaged therein. See Laws of 1917, chapter 28, § 19, p. 96; Laws of 1919, chapter 67, § 1, p. 134; Laws of 1925, Ex. Ses., chapter 84, § 1, p. 98; Rem. Rev. Stat., § 7693 [P.C. § 3486].
It is true that these amendatory acts, now appearing as Rem. Rev. Stat., § 7693, quoted in the majority opinion, contain three provisos in the nature of exceptions to the general provisions of that section, but none of these provisos afford respondent immunity from liability.
The first proviso positively creates a liability in *Page 62 damages in favor of an employee of a common carrier by railroad engaged in interstate or foreign commerce and in intrastate commerce, in all cases where liability does not exist under the laws of the United States. The proviso has no relation to this case in any event, because appellant was not an employee of respondent.
The second proviso has reference to an interstate common carrier by railroad which shall also be engaged in one or more intrastate enterprises or industries other than its railroad. In such case, the act still applies to the intrastate enterprise or industry (other than its railroad), provided that the pay roll of such other enterprise or industry is clearly separable and distinguishable from the pay roll of the maintenance or operation of such railroad, or of the maintenance or construction of its equipment. In the case before us, the intrastate enterprise or industry in which the respondent was engaged at the time of the accident was not one other than its railroad.
The third proviso has relation to an independent contractor engaged in performing extrahazardous work for a common carrier by railroad. Manifestly, that proviso has no application here at all.
As Rem. Rev. Stat., § 7693, now stands, therefore, respondent is excluded from its operation and, consequently, from its protection, so far as the appellant is concerned.
Aside from what I have just said by way of concurrence in the result, I am not wholly in accord with the interpretation placed by the majority upon "the idea of industrial insurance."
The "idea," as expressed and developed in the act, and as interpreted by this court, contains an element which the majority overlooks, or, at least, does not include in its opinion. That element is one of correlative *Page 63 sacrifices by the employer and employee in order that the act may have full play and accomplish its intended purpose. The thought is thus expressed in State v. Mountain Timber Co., 75 Wash. 581,583, 135 P. 645, on which the majority opinion relies:
"The legislature has adopted the idea of industrial insurance, and seen fit to make that idea a workable one by putting its execution, as well as its administrative features, in the hands of a commission. It has abolished rights of actions and defenses and in certain cases denied the right of trial by jury. The legislature has said to the man whose business is a dangerous one and the operation of which may bring injury to an employee, that he cannot do business without waiving certain rights and privileges heretofore enjoyed, and it has said to the employee that, inasmuch as he may become dependent upon the state, that he must give up his personal right of contract when about to engage in a hazardous occupation and contract with reference to the law. These demands are the fundamentals of our industrial insurance law. If the law is not administered as therein provided, it is not likely that a compulsory law such as it is could ever be adequately administered; for, aside from its humane purpose, it was adopted in order that the delay and frequent injustice incident to civil trials might be avoided."
The majority emphasizes the burden assumed by the employer to pay the cost of industrial insurance, but fails to note the correlative obligation on the part of the employee to
". . . give up his personal right of contract when about to engage in a hazardous occupation and contract with reference to the law."
Unless both features be recognized and maintained, the true intent of the act will not have been accomplished.
I make these observations now, not because they affect the present decision, but rather to express what I *Page 64 believe to be the true "idea of industrial insurance" as a workable system of compensation for those employed in extrahazardous occupation.
BEALS, J., concurs with STEINERT, C.J.