I concur with the majority, but for reasons somewhat different from those expressed in the majority opinion.
As stated in Thurston County Chapter, American Nat. Red Crossv. Department of Labor Industries, 166 Wn. 488,7 P.2d 577, the workmen's compensation act repeatedly uses the word "industries," and the whole theory of that act is to the effect that it was intended to apply to a trade or business which is operated for profit or pecuniary gain. That concept and that interpretation of the act were later forcefully emphasized in theCarsten, Dalmasso, and Jannak cases, cited in the majority opinion.
Prior to 1937, the workmen's compensation act, in the section devoted to definitions of terms used in the act, defined the word "workman" as follows:
"Workman means every person in this state, who is engaged in the employment of any employer coming under this act whether by way of manual labor or otherwise, in the course of his employment." (Italics mine.) Rem. Rev. Stat., § 7675 [P.C. § 3470].
Subsequent to the decisions in the four cases cited above, the legislature in 1937 amended Rem. Rev. Stat., § 7674 [P.C. § 3469], relating to extrahazardous employment and now appearing as Rem. Rev. Stat. (Sup.), § 7674-1 [P.C. § 3469d], by adding a section defining the term "workman" as follows:
"The term workman within the contemplation of this act means every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his personal labor for any employer coming under thisact whether by way of manual labor or otherwise in the course of his employment." (Italics mine.) Laws of 1937, chapter 211, § 2, p. 1030. *Page 81
Before the enactment of the 1937 amendment, it was well settled in this state that an independent contractor was not entitled to the benefits of the workmen's compensation act. Haller v.Department of Labor Industries, 13 Wn.2d 164,124 P.2d 559, and cases therein cited. The 1937 amendment therefore brought within the protection of the workmen's compensation act, in addition to those workmen theretofore included therein, independent contractors whose contracts call for extrahazardous work and whose own personal labor is the essence of their contracts.
In this connection, it is noteworthy that in 1939 the legislature passed an act (Laws of 1939, chapter 41, p. 119) amending both § 7674 of Rem. Rev. Stat. (as amended by Laws of 1937, chapter 211, § 1), relating to extrahazardous employment, and § 7675, Rem. Rev. Stat., which is the section devoted to definitions, both of which numbered sections are referred to above. In the act of 1939, the term "workman" is defined in the identical language as that used in the workmen's compensation actprior to the 1937 amendment, namely:
"Workman means every person in this state, who is engaged in the employment of any employer coming under this act whether by way of manual labor or otherwise, in the course of his employment." (Italics mine.) Laws of 1939, chapter 41, § 2, p. 123.
I again call attention to the fact that, throughout these various sections of the workmen's compensation act devoted exclusively to definitions of terms therein used, a "workman" is defined as one who is engaged in the employment of an employercoming under the act. I stress this fact because it has been definitely established in this state that what an "employee"does is not of itself determinative of his status as a workman under the compensation act, but rather is his status determined primarily by the business or industry of his employer. InThompson v. Department of Labor Industries, 194 Wn. 396,78 P.2d 170, the governing principle in such cases is stated as follows: *Page 82
"The primary test is whether or not the employer comes within the provisions of the act, that is to say, whether he is engaged in extrahazardous business or industry. . . . It is the business or industry of the employer, rather than the activities of theemployee, that determines whether or not the employee is within the provisions of the act. [Citing cases.]" (Italics mine.)
Now, the difficulty presented in the instant case arises from the fact that, prior to the recent act of 1939, referred to above, the existing workmen's compensation act defined the term"employer" as follows:
"Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all whileengaged in this state in any extra-hazardous work or whocontracts with another to engage in extra-hazardous work." (Italics mine.)
whereas the 1939 act substituted for the language above italicized the following:
". . . all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work."
It must be conceded, I think, that the 1939 legislature had some purpose in mind in changing the phraseology and arrangement of words defining the term "employer," and at first blush it might seem that the intention was to broaden the scope of the term "employer" so as to include not only one who is engaged in extrahazardous work as a trade or business, but also one who merely contracts with a workman to do personal extrahazardous work, including even a householder who has some casual work done upon his premises, provided always that the work is of an extrahazardous character as defined and classified in the general workmen's compensation act.
When, however, we consider the spirit and fundamental purpose of industrial insurance provided for in the workmen's compensation act, as disclosed by the original act of *Page 83 1911 and the various amendments thereto, together with the repeated statements by this court recognizing and enunciating that spirit and purpose, and when we further consider the machinery set up for the proper administration of the act, it is apparent, I think, that the legislature did not intend so radical a departure from the original purpose of the act as a superficial interpretation of the amendatory act of 1939 might at first seem to imply. The title to the late act contains nothing which in itself would suggest such an intent, and, while the body of the act amends the former definition of the term "employer," the same act preserves the fundamental idea and purpose of industrial insurance and defines a "workman" as one engaged in the employment of any employer coming under the act.
Bearing in mind the fact, as already stated above, that in 1937 the legislature amended the definition of the word "workman" so as to bring certain independent contractors within the protection of the compensation act, and noting the further fact that, although that amended definition of "workman" is retained in Rem. Rev. Stat. (Sup.), § 7674-1, for the benefit of such independent contractors, the 1939 act itself adopts the original definition of the term as applied to workmen generally, I am of the opinion that the intention of the 1939 legislature in amending the definition of the term "employer" was simply to so harmonize the definition of "employer" with the definition of "workman" as defined in the 1937 act, that the protection provided for certain independent contractors in the 1937 act would clearly be preserved in the 1939 act. This court has virtually so held in Haller v. Department of Labor Industries,supra, wherein, after analyzing these very amendments contained in the 1937 and the 1939 laws, respectively, this language is used:
"Manifestly, the legislature intended, by the enactment of the two amendments, to extend industrial insurance protection to some, but not all, independent contractors whose contracts call for the performance of extrahazardous work." *Page 84
It seems to me that, if the definition of "employer" as contained in the 1939 act was intended by the legislature to extend the application and scope of the whole act so as to include all extrahazardous work, regardless of whether or not that work was carried on as a business or trade, the numerous expressions, in Rem. Rev. Stat., § 7675, at least, which restrict the application of the act to trade or business, would have been deleted. It would have been entirely unnecessary, as well as confusing, to retain in the act terms and expressions having to do only with trades or businesses.
In the very first case involving the workmen's compensation act (State ex rel. Davis-Smith Co. v. Clausen, 65 Wn. 156,117 P. 1101, 37 L.R.A. (N.S.) 466), wherein this new type of legislation was exhaustively argued and considered, this court recognized that the law applied only to trades, businesses, or industries. For over thirty years that has been the law. We should therefore be very reluctant to overturn such a long standing legislative policy by extending the application of the act so as to introduce an extreme departure from its original aim or scope, especially when the sole reason for doing so is a phrase added to a definition, and there is another reasonable interpretation that can be placed upon that phrase harmonizing it with the fundamental purpose and spirit of the law.
I am the more persuaded to adopt this conclusion for the reason that, if the legislature had intended to broaden the scope of the term "employer" so as to include others than those engaged in extrahazardous work as a trade or industry, it would have made reasonable and workable provisions for the collection of premiums and assessments from such newly created employers. It would not have left the matter in such situation as would lead to the impossible results pointed out in the Carsten case, supra.
For the reasons as herein attempted to be set forth, I think the judgment of the trial court should be reversed.