This decision leaves without protection a vast group of workmen engaged in extrahazardous occupations — for they have no common law remedy for injury sustained in the course of their employment. And such recourse as they may have under the Washington Emergency Relief Administration set-up, in the way of time loss and medical care, is purely gratuitous, and is subject to discontinuance at any time. In case of death, their dependents have no remedy whatsoever.
If this result followed from a necessary construction of the workmen's compensation act, I should feel compelled to acquiesce in it. The decision, however, reads into the act a qualification that certainly cannot *Page 660 be found in its express terms. Nor do I think it can be inferred from the terms of the act by any reasonable implication. Under the terms of the act, there are just three elements necessary to entitle a workman to compensation: (1) That the relationship of employer and employee exist; (2) that the employer be within the purview of the act; (3) that the employee be engaged in extrahazardous work and injured while in the course of his employment.
The statute (Rem. Rev. Stat., § 7692 [P.C. § 3485]) provides:
"Whenever the state . . . shall engage in any extrahazardous work . . . in which workmen are employed for wages, this act shall be applicable thereto. . . ."
Of this clause, the majority say:
"This statute (§ 7692) rather clearly indicates by its terms that what the legislature had in mind was work done by the state. . . which would be comparable to like extrahazardous work done by private employers."
Accepting this criterion, can there be any doubt but that plaintiff would be entitled to compensation had he been in the employ of a "private employer"? He was injured while engaged as a painter in the repair of a building at a stipulated wage of $1.12 1/2 per hour. As a contract with a private employer, all the elements required by the statute are present. Yet the majority further say:
"Here, we have no employer who was bound to perform any work of any character, but, on the contrary, we have the sovereign state acting through a special executive agency in conjunction with the Federal government engaged in distributing relief to its distressed citizens, and nothing more. If, as an incident to that distribution of relief, work was provided to assist in maintaining the self-respect of those *Page 661 in need, that did not change the character of the undertaking in any degree."
Does this mean that the relationship of employer and employee did not exist between the state and plaintiff? By what other terms could the relationship be defined? Certainly, all the essential elements of such relationship are present. W E R A is a department of the state authorized to engage in construction work, just as the highway department is. It employed plaintiff in extrahazardous work at a stipulated wage of $1.12 1/2 per hour. These facts, under the express terms of the workmen's compensation act, bring the state within the definition of an employer and the plaintiff an employee whose injuries entitle him to compensation.
Where the money comes from to pay wages, or whether the work being performed is regular or necessary, is wholly beside the question of the workman's right to compensation. For the court to concern itself with such considerations, is to place limitations upon the scope of the workmen's compensation act which cannot be found in its terms, express or implied.
I dissent.
MAIN and HOLCOMB, JJ., concur with BLAKE, J. *Page 662