I dissent. As the author of the opinion in Carsten v.Department of Labor and Industries, 172 Wash. 51,19 P.2d 133, I am wholly content with the rule there announced, but, in my judgment, this case does not come within that rule.
The appellant Dalmasso, while he may have been a painter all his life, was not, by any rule of law of which I am aware, compelled to continue in that occupation, but was free at any time to depart from it, temporarily or permanently, and engage in any other occupation for so long a time as he might see fit.
In Rem. Rev. Stat., § 7676, is a provision which reads:
"Every employer who shall enter any business, or who shall resume operations in any work or plant after the final adjustment of his payroll in connection therewith, shall, before so commencing or resuming operations, *Page 299 as the case may be, notify the director of labor and industries of such fact, accompanying such notification with an estimate of his payroll for the first calendar month of his proposed operations, and shall make payment of the premium on such estimated payroll."
As I read the record in this case, Dalmasso did enter into a business, an industry in which he employed workmen, the primary purpose of which was to provide a wage for those engaged therein. Perhaps this business was temporary only, but that is immaterial. For the time being, he engaged in the industry of the demolition of a building, employed workmen to aid him in that industry, filed an estimate of his payroll and paid premiums thereon, and, with himself as a working employer and with the four other workmen so employed, he entered upon the demolition of the building.
That the wages were to be paid from the proceeds of salvaged material, does not alter the situation. All so employed were workmen, whether paid a stipulated per diem or paid according to values received from the material salvaged, and in my opinion they were in the employ of an employer coming under the act.
Because of this difference in the facts, I am of the opinion that this case is not ruled by the Carsten case, and that the judgment of the trial court should be reversed.
HOLCOMB and BEALS, JJ., concur with TOLMAN, J.