As the author of the opinion of the court in the case ofCarsten v. Department of Labor and Industries, 172 Wash. 51,19 P.2d 133, I am not only still of the view that there the law was properly construed and applied, but also I am firmly convinced that the rule there announced should not be deviated from.
To recover for injuries received in the course of his employment, a workman must not only be engaged in extrahazardous employment, but he must also be in the employ of an employer who comes under the act. *Page 405
Section 7675, Rem. Rev. Stat. [P.C. § 3470], defines an employer in these words:
"Except when otherwise expressly stated, employer means any person, body or persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work or who contracts with another to engage in extra-hazardous work."
The initial words, "except when otherwise expressly stated," require an examination of the entire act for the purpose of ascertaining if any exception has been expressly stated, and by such a search, we find that, in § 7676 (a), under Class 5, subdivision 5-10, an exception has been stated in these words:
"5-10 General construction (includes all operations by temporary employers in building construction) . . ."
We must give effect to this language as well as to that which precedes it, and it seems to me that its meaning is plain, obvious, and unmistakable. This language could only have been used for the purpose of bringing within the act all operations by temporary employers in building construction. There is left for our construction only the meaning of the words "building construction." Do these words mean the minor type such as building a shed or a chicken house, or are they intended to cover a substantial operation involving enough labor to make a practical application of the law possible? A reading of theCarsten case, supra, will make this point clear. It is impossible and impractical to apply the law to minor operations.
Here, however, we very clearly have such a building construction as the statute recognizes. The employer, a corporation (non-profit making, it is true, but that is wholly immaterial), was engaged in a major improvement of its property in order to further the purposes *Page 406 for which it was organized. The building, a two-story structure, 20 x 72 feet, divided into dormitories, kitchen, dining room and a large reception room, was a complete club house designed to be used as such for the accommodation and comfort of members and guests. By no stretch of the imagination can such a building be called a minor improvement, the erecting of which would be no more than an odd job. The nature and extent of the work in and of itself clearly distinguishes this case from the Carsten case.
It is not for the courts to usurp the legislative power and attempt to draw an exact line between building construction, as the term is used in the statute, on the one side and odd jobs and minor improvements on the other. It would be simple, indeed, for the legislature by definite rules based on the amount of labor, the cost of the structure, the number of men employed, the total wages paid, or something of that nature, to establish the dividing line, for there must be a dividing line somewhere; but until the legislature so acts, it is not for us to lay down a definite rule. Under the law as it stands, it is our duty to apply the rule of reason to the facts presented in each individual case.
Applying that rule to the facts in this case, it seems self-evident that we have here building construction as covered by the statute, and therefore the judgment of the trial court is right, and should be affirmed.
BEALS and HOLCOMB, JJ., concur with TOLMAN, J.