I am unable to agree with the majority opinion, my reasons being the same as those contained in my dissent in CowicheGrowers, Inc. v. Bates, 10 Wn.2d 585, 612, 117 P.2d 624. In addition, it seems to me that the trial court was correct in saying in his memorandum opinion:
"We will take up the first of petitioner's contentions, that is, that the labor in question is excluded from the act by reason of the definition given in Chapter 214, p. 857, Laws of 1939, Sec. 16 (6): `The term "unemployment" shall not include agricultural labor (services customarily performed by a farm hand on a farm for the owner or tenant of the farm).'
"This definition must be considered in connection with the stipulation of June 30, 1942, paragraph 5:
"`That none of the services hereinbefore mentioned were rendered upon a farm, but were performed in packing houses and warehouses owned and operated by petitioner, although such services were the same and identical services usually rendered in preparing commodities for market upon a farm by those farmers having large enough farms to be able to afford the necessary equipment incident to the washing, sorting and packing of their own products.' *Page 217
"When the definition and the facts as stipulated are read together, there would seem to be no room for construction except that applied to the plain use of the English language; but the forest of argument and legal interpretation seems to have made that which was simple a question highly complex, and consideration must be given to the cases above cited.
"The act refers to `services customarily performed by a farm hand on a farm.' The stipulation says the services were the same identical services `usually rendered . . . upon a farm.'
"It is seldom that one set of words can more aptly be fitted into another set. Unless there is something, therefore, in the decisions which precludes such conclusion, the court must hold that the services now under consideration are excluded from the operation of the act. To accept that reasoning would be to decide the case without further consideration, but both parties submitted and argued other phases which will be given consideration.
"The situation in the Cowiche Growers case, supra, was almost identical with that in the instant case except as to one important particular. In both cases the nature of the work is set forth in detail and there is no substantial variance in such detail as between the two cases. One of the issues, however, in the Cowiche case was whether or not such detailed work was `services customarily performed by a farm hand on a farm,' while in the case now under consideration it was stipulated (Paragraph 5 — Stipulation of June 30, 1942, as above quoted) that `such services were the same and identical services usually rendered in preparing commodities for market on a farm. . . .'
"In the Cowiche case, the court cited with approval, on page 602, and italicized the language of the Federal Court in North Whittier Heights Citrus Association v. National Labor Relations Board, 109 F.2d 76:
"`The factual change in the manner of accomplishing the same work is exactly what does change the status of those doing it.' If this language is taken literally, it must be said that the court thus by judicial decree changed the standard to be applied from the character of the work (services customarily performed) to the manner of performance.
"The court again seems to deflect the apparent intention of the legislature when on page 605 it said: `The legislature . . . indicated in no uncertain terms that the term "agricultural labor" as used in the 1939 act, includes only labor *Page 218 performed on a farm,' thus deleting and giving no weight to the word `customarily' as used in the 1939 act and changing the standard from the kind of work in the place of performance.
"We have dwelt somewhat at length upon this phase of the case because we are constrained to the belief that the supreme court did not intend to lay down a general rule for the guidance of the lower courts as contrary to the obvious intent of the legislature as the quoted language would imply, and for the further reason that later decisions which may be construed as modifying the Cowiche decision should be considered.
"The next case applying to the point now under consideration is the Wenatchee Beebe Orchard case, 116 Wn. Dec. 223. The issue involved (p. 226) `narrows down to the single question; namely, is the packing of apples grown by a farmer and packed in his own warehouse, not on the farm but adjacent to it, an agricultural labor operation?' Superficial examination would indicate that the answer to that question had already been given in the Cowiche Growers case. Indeed, the supreme court (p. 226) so indicated: `In the Cowiche case this court decided that the services . . . would not constitute agricultural employment because the operation was not conducted by the farmer on the farm . . .'
"But the trial court did not feel bound by this narrow construction of the Cowiche case, nor does this court feel such obligation. We feel it our duty to put our own construction upon the act if such construction can be reconciled to previous decisions in any manner, or even if such construction called for a change of position heretofore taken by the supreme court.
"This position is justified by the fact that the trial court did in the Beebe case depart from the narrow interpretation of the Cowiche case, and was upheld in so doing. The supreme court in the latter case (p. 226) in quoting the 1939 act not only included the word `customarily,' but italicized it, thus giving to that word the importance which the legislature evidently intended.
"It is noted that the only dissenting opinion in the Beebe case was based on the ground that the decision was inconsistent with that in the Cowiche case.
"Whether it is said that the latter case reversed the former or merely distinguished it is of little moment. The relationship between the two decisions is sufficient reason for *Page 219 going one step further in drawing the proper distinction between the Cowiche case and the one now under consideration.
"The next case bearing on the question is Hansen Bros. Dairy v. Riley, 118 Wn. Dec. 7.
"The issue was whether or not milk truck drivers and milkhouse men are agricultural laborers. It will be noted that the period involved brought the case within the 1941 act instead of the 1939 act, but the questions discussed were pertinent to both acts.
"It will be noted that the definition of the term `agricultural labor' in the 1941 act is in no way inconsistent with the 1939 act, but merely elaborates such definition. It will also be noted that such legislative definition fits almost exactly into paragraph 3 of the June 30, 1942 stipulation, which paragraph outlines the work being done by the petitioner herein. . . ."
April 12, 1944. Petition for rehearing denied.