STEINERT, BEALS, GERAGHTY, and ROBINSON, JJ., dissent. This action was brought to recover damages for personal injuries. To the third amended complaint, *Page 41 which will be referred to as the complaint, a demurrer was interposed and sustained. The plaintiff elected to stand upon the complaint, refused to plead further, and, from the judgment dismissing the action, appealed.
The facts, as they appear in the complaint, will be stated only in so far as necessary to present the question here for determination. The respondents, Shell Oil Company and C.G. Crewes, were engaged in the sale and distribution of gasoline. The appellant, Robert O. Reeder, was employed by the Diesel Oil Sales Company and was engaged in the hauling of road surface oil, to be delivered and spread upon the highway where the accident which gave rise to this controversy occurred.
At a point about six miles east of Prosser, in Benton county, the appellant stopped his truck, alighted therefrom, and was conferring with persons engaged in construction and repair work upon the highway. One Allen Juezler, employed by the respondents, was proceeding east, driving a gasoline truck, which struck the appellant and caused the injuries for which he seeks recovery. The appellant was engaged in extra-hazardous work, and he and his employer were under the workmen's compensation act of this state. The respondents were likewise engaged in extrahazardous work at the time the accident occurred.
[1] The question is whether the appellant had the right to elect to bring this action at law against the respondents for damages instead of seeking relief under the workmen's compensation act.
In Rem. Rev. Stat., § 7675 [P.C. § 3470], it is provided:
"That if the injury to a workman is due to the negligence or wrong of another not in the same employ, the injured workman, . .. shall elect whether to *Page 42 take under this act or seek a remedy against such other, . . ."
And it is further provided that no action may be brought against any employer or any workman under the act
". . . as a third person if at the time of the accident such employer or such workman was in the course of any extrahazardous employment under this act. . . ."
As stated, the appellant elected to bring the action against the respondents, even though he was not in their employ. Whether he has a right to maintain the action depends upon whether the respondents are in a position to rely upon the defense that they were engaged in extrahazardous employment and that the appellant was not in their employ.
In Rem. Rev. Stat., § 7676 [P.C. § 3471], it is provided that:
"In respect to any injury happening to any of his workmen during the period such employer shall be in default in the payment of any premium, if such default be after demand for payment, or if such employer shall be in default for failure to furnish the department with an estimated payroll or with monthly reports of his payroll as required by this section, the defaulting employer shall not be entitled to the benefits of this act, but shall be liable to suit by the injured workman . . ., at his or their option, as he would have been on March 14, 1911, . .. "
In the complaint, it is alleged that the respondent Crewes had not paid any premiums and had not made any monthly reports of his payroll, and that the respondent Shell Oil Company had failed to furnish the department with any estimate of its payroll and workman hours or with monthly reports of its payroll and workman hours, which included Juezler, and had failed and neglected to pay any industrial insurance *Page 43 premiums upon him. In the excerpt quoted from Rem. Rev. Stat., § 7676, it appears that, if an employer be in default in payment of premium and does not pay the same after demand, or, if he shall fail to report to the department his estimated payroll or make monthly reports of his payroll as required by the statute, he shall not have the benefits of the act, and the injured workman may maintain an action at law.
The respondents say that this provision with reference to default in payment or default in making reports is only applicable to the employer in whose employ the workman was at the time he sustained the injury. The appellant says that the statute should be construed so as to apply equally to a third person engaged in extrahazardous employment when an action is brought against him by a workman who, through his negligence, was injured while in the employ of another.
In Arthun v. Seattle, 137 Wash. 228, 242 P. 16, it was said:
"The injury to the respondent was caused by the alleged negligence of another not in the same employ, creating the right of a common-law action against the wrongdoer, unless there is something in the workmen's compensation act which directly, or by necessary implication, is in derogation of that right. By common consent, that understanding of a statute which restricts or limits a common-law right must not be entertained, if possible to be avoided."
In O'Brien v. Northern Pac. R. Co., 192 Wash. 55,72 P.2d 602, the plaintiff, injured while in the course of his employment, brought an action against the defendant railway company, which was engaged in interstate commerce, while he was in the employ of another, and it was held that he had a right to maintain such action, because the railway company was not amenable to the act and did not contribute to the accident *Page 44 fund with respect to its interstate operations. In the course of the opinion, it was said:
"From time to time, the idea has developed [the idea of industrial insurance], until in 1931 an elaborate plan was effected for computing rates of contribution to the `accident fund.' (Laws 1931, chapter 104, § 1, p. 297.) The plan was designed to levy contribution at rates based largely upon the individual employer's `cost experience.' This principle of adjusting the employer's rate of assessment by the measure of his own cost experience plainly indicates that the basis for the immunity from suit afforded the employer by the act is made dependent upon his contribution to the accident fund. This view is fortified by Rem. Rev. Stat., § 7676 [P.C. § 3471], which specifically deprives an employer, who is in default in payment of premiums, of the benefits of the act, and subjects him to suit by an injured employee. And in such a suit, the employer may not interpose the defenses of negligence of fellow servant, contributory negligence, or assumption of risk.
"In view of this section, an anomalous situation would be created by the logical application of respondent's contention: A defaulting employer would be subject to suit by his own employee, but, merely by reason of being engaged in extrahazardous employment, be immune from suit by a workman in the employ of someone else.
"Construing the above quoted proviso of Rem. Rev. Stat., § 7675, in the light of the industrial insurance act as a whole, we think a workman, engaged in extra-hazardous employment, is not precluded from maintaining an action for negligence against one not his employer, unless such a one is amenable to the act and a contributor to the `accident fund.'"
There, the view is definitely expressed that a workman engaged in extrahazardous employment is not precluded from maintaining an action for negligence against one not his employer, "unless such a one is amenable to the act and a contributor to the `accident *Page 45 fund.'" Under the allegations of the complaint, neither of the respondents furnished the department of labor and industries with an estimate of their payroll or with reports of their payroll, which included Juezler, and for this reason they would not be entitled to the benefits of the workmen's compensation law.
We are not disposed to depart from the construction of the statute as made in the O'Brien case. If the statute was given the construction contended for by the respondents, its constitutionality, under the fourteenth amendment to the Federal constitution, would be subject to some doubt. Missouri, K. T.R. Co. v. May, 194 U.S. 267, 48 L. Ed. 971, 24 S. Ct. 638;Williams v. Arkansas, 217 U.S. 79, 54 L. Ed. 673, 30 S. Ct. 493;Watson v. Maryland, 218 U.S. 173, 54 L. Ed. 987, 30 S. Ct. 644;Barrett v. Indiana, 229 U.S. 26, 57 L. Ed. 1050, 33 S. Ct. 692. However, inasmuch as that question is not necessarily involved upon this appeal, we pass it without discussion or decision.
Attention is called to the fact that the allegations with reference to Crewes were general, while those with reference to the Shell Oil Company were restricted to its failure to comply with the act, so far as its employee Juezler was concerned. But we see no substantial difference in these allegations as to the respective parties.
The judgment will be reversed, and the cause remanded with direction to the superior court to overrule the demurrer.
BLAKE, C.J., MILLARD, JEFFERS, and SIMPSON, JJ., concur.