On November 25, 1932, and for several days prior thereto, plaintiff was engaged in working *Page 646 on public roads in commissioner's district No. 3, of Skagit county. He was hired by the commissioner who had charge of road work in that district, and was under the immediate direction of a foreman employed by the county. He was paid from moneys in the indigent relief fund, which had been augmented that year by the issuance by Skagit county of its general obligation bonds in the amount of one hundred thousand dollars. It seems that plaintiff was paid by some sort of a voucher, which was redeemable in warrants drawn against and paid out of this fund.
On the date mentioned, in the course of his work he sustained injuries. There is no question but that the work was extrahazardous, under the classification of extrahazardous employments contained in Rem. Rev. Stat., § 7676 (a) [P.C. § 3471]. Neither is there any question that the county is an employer, in contemplation of the workmen's compensation act, when it engages in extrahazardous work. Rem. Rev. Stat., § 7692 [P.C. § 3485]. It would seem clear that, under the plain terms of the act and the facts stated, the plaintiff would be entitled to compensation. The department, however, held that plaintiff was not an employee, in contemplation of the act, and dismissed his claim. The joint board affirmed the ruling of the department. Plaintiff appealed to the superior court, which reversed the ruling of the department and held that plaintiff was entitled to compensation under the act. The department appeals.
[1] It is appellant's contention that, since the work respondent was doing was "made work," "emergency relief work," "charity work," the relationship of employer and employee did not exist between him and the county. The almost unanimous weight of authority in the United States supports this view. Reavey v.Guild of St. Agness, 284 Mass. 300, *Page 647 187 N.E. 557; State ex rel. State Board of Charities v. Nevada IndustrialCommission, 34 P.2d (Nev.) 408; Jackson v. North CarolinaEmergency Relief Administration, 206 N.C. 274, 173 S.E. 580;Bell v. Raleigh, 206 N.C. 275, 173 S.E. 581; Vaivida v. GrandRapids, 264 Mich. 204, 249 N.W. 826; Davenport v. Detroit,268 Mich. 374, 256 N.W. 354; West Milwaukee v. IndustrialCommission, 255 N.W. (Wis.) 728; In re Moore,97 Ind. App. 492, 187 N.E. 219; McBurney v. Industrial Accident Commission,220 Cal. 124, 30 P.2d 414; Los Angeles County v. IndustrialAccident Commission, 140 Cal.App. 727, 35 P.2d 1035; Ricov. Industrial Accident Commission, 137 Cal.App. 772,30 P.2d 584.
The reasoning of those cases seems to be that, since the county is simply performing its governmental function of giving relief to the pauper, or indigent, the relationship of employer and employee does not arise; that, by reason of the beneficence of the municipality and the necessity of the worker, the latter falls without the pale of protection of the compensation act, notwithstanding he is hired and paid by the municipality and the work he performs is extrahazardous.
Two American courts have taken the opposite view. Waycross v.Hayes, 48 Ga. App. 317, 172 S.E. 756; Forest Preserve Dist. ofCook County v. Industrial Commission, 357 Ill. 389,192 N.E. 342. And the supreme court of North Carolina has more recently held that, if the workman is working for the municipality and paid by it, the relationship of employer and employee exists, notwithstanding compensation was paid out of funds procured from the Reconstruction Finance Corporation. Mayze v. Forest City,207 N.C. 168, 176 S.E. 270. These cases are in accord with the rule adopted by the English courts early in the history of workmen's compensation legislation. Porton v. Central *Page 648 (Unemployed) Body for London, 2 B.W.C.C. 296 (1908); Gilroy v.Mackie and Others (Leith Distress Committee), 2 B.W.C.C. 269 (1909); MacGillivray v. The Northern Counties Institute for theBlind, 4 B.W.C.C. 429 (1911).
Since we shall adopt the English view, we can do no better than to adopt also the cogent reasoning in support of it contained in the first of the above cited cases. The decision was by the court of appeal, and is the leading case on the subject. It is there said:
"It is said by counsel for the appellants, who has urged every possible point, that the relation of employer and workman did not exist here because it was not a matter of free choice on either side; that the Central Body could not go into the labour market and get any man they liked, but were practically, if not expressly, limited to such applicants as were sent to them by the distress committee, and that the man himself was not a free agent because he was so hard up that he was ready to take anything that was offered. I can see no foundation for that argument in either of its branches. The Central Body exists for the very purpose of providing work in proper cases. I have no doubt that they exercised their discretion with propriety and employed Porton because he was a man coming within the class of persons whom they were authorized to employ, and they thought it was a reasonable case. Porton, on the other hand, was in no way bound to come to them. He was hard up, no doubt, in the sense that he was willing to take work under rather more disadvantageous conditions than he would have done at other times. What has that to do with it? We have here a document which states the conditions of employment. It is headed `Central (Unemployed) Body for London.' It states the hours of labour; it states the time allowed for dinner out of those hours; it states the rate of wages per hour, and it states that traveling expenses to a certain extent will be paid if previously sanctioned; then it says what deduction is to be made for lost time. The man accepts the employment; he is employed for a considerable *Page 649 time, and the average wages extending over that time amounted to 18s. or rather more per week. We are asked to say that that did not create the relation of employer and workman between the Central Body for London and this man. If it was not a contract of employment, I cannot imagine what it was. I know no other words to describe it. It certainly was not charity; it certainly was not poor law relief. Sect. 1 (7) [Unemployed Workmen Act, 1905], if there were any doubt about it, negatives any such idea. It seems to me to be a plain case in which the Central Body were the employers and the deceased man was a workman within the definitions in the Workmen's Compensation Act."
In the instant case, the joint board was obviously confronted by the same difficulty in describing the relationship between the county and the respondent other than in terms of employment, as the justice who delivered the foregoing opinion had in describing the relationship between the workman and the relief committee. For the joint board, in its order denying respondent's claim, said:
"A review of the file indicates that claimant, 53 years of age, on November 25, 1932, while in the employ of Skagitcounty, was riding home from work in a car driven by the county foreman when the truck struck the back of a trailer, and he sustained a laceration of the scalp and left upper eyelid and a sprained neck; that he was thereafter awarded monthly compensation to March 1, 1933, on or about which time it was discovered that he was engaged in relief work, being paid at the rate of $2.00 per day by a warrant which was negotiable for groceries or supplies, following which the claim was rejected as above noted, and from which the appeal resulted."
We, too, are at a loss to describe the relationship other than in terms of employment. It seems apparent that, had respondent been employed on a regular road gang, and had he been paid by warrant on *Page 650 the current expense fund, his right to compensation would not have been questioned. But the statute makes no such distinction, nor does it empower the department to do so. It is no concern of the department, under our workmen's compensation act, as to how the workman is paid — whether it be by cash, warrant, scrip or supplies. It is sufficient to create the relationship of employer and employee, within the purview of the act, if the county be engaged in extrahazardous work and the worker be engaged, for compensation in the performance of such work, by someone authorized by the county to hire him.
It is suggested by appellant that the case of Thurston CountyChapter, American Nat'l Red Cross v. Department of Labor andIndustries, 166 Wn. 488, 7 P.2d 577, is of some controlling force here. We do not so read it. That case simply holds (a) that a charitable organization such as the Red Cross was not an employer within the terms of the workmen's compensation act, and (b) that the workmen involved in that controversy were employees of the Red Cross chapter, and not employees of Thurston county.
Judgment affirmed.
MILLARD, C.J., MAIN, MITCHELL, and HOLCOMB, JJ., concur.
GERAGHTY, J., concurs in the result.