(dissenting in part) — On the first question discussed by the majority, I am unable to concur in the conclusion reached.
*682Whether the warehouse in which the accident occurred was of such a nature as to render employment therein extra hazardous, the findings of fact, it seems to me, are too meager to determine. While docks and wharves are among the' places enumerated in the workmen ’s compensation act as extra hazardous for workmen laboring therein, warehouses are not. If a warehouse is within the act, therefore, it is because of some special circumstance making work therein extra hazardous, a fact to be determined from the conditions surrounding the particular case.
Turning to the finding, and disregarding for the moment the stipulation mentioned in the findings, nothing is found to indicate that this warehouse differed in its operation from the ordinary warehouse such as was under contemplation in the case of State v. Powles & Co., cited by the majority. True, the court found that the corporation owning the warehouse was “engaged in conducting and carrying on a general public warehouse, dock and wharfage operation business . . . and in storing and handling therein goods, wares and merchandise of other people and the general public for hire, ’ ’ but this is not a finding that the warehouse was so closely connected with the dock and wharf as to be an inseparable part of both or either of them. The finding could be true, and the warehouse be not connected with, or form a part of, either of such places. The remaining findings lend color to the fact that it was not so connected. It is found that the person killed was employed to work in the warehouse, not the warehouse, dock and wharf, and that he was killed in the warehouse, not on either the dock or wharf, implying a separate structure rather than one connecting with some other. As a matter of fact, it was not so connected. In the first argument of the cause it was stated without contradiction that the warehouse was across *683the street from the dock and wharf, connected with them only by an overhead covered tramway.
It was found, it is true, that power-driven machinery was used in the business, and that the person killed was killed while in the act of using a power-driven elevator; but, as we pointed out in Remsnider v. Union Sav. & Trust Co., 89 Wash. 87, 154 Pac. 135, Ann. Cas. 1917D 40, the workmen’s compensation act does not say, nor does it imply, that every place in which power-driven machinery is employed impresses an extra hazardous character on work performed therein. It but employs the circumstance of the presence of power-driven machinery with a number of other things, some one or more of which must be connected with or concur with the power-driven machinery to impress the place with an extra hazardous character. The case is authority also for the proposition that a power-driven elevator does not impress a place with an extra hazardous character.
I think, therefore, that the majority are in error in reaching the conclusion from the facts found that the place in which the person killed was employed to work was impressed with an extra hazardous character.
The trial court found the place of work extra hazardous because of the stipulation of the parties. But I cannot think the stipulation controlling under the peculiar circumstances of the case. That stipulation and its subsequent inadvisability arose from the following circumstances: Prior to the accident which resulted in the death, the commission, by resolution, sought to bring within the operation of the workmen’s compensation act “all firms or individuals operating storage warehouses, or warehouses in connection with mercantile establishments, whether operated independently or in connection with other businesses,” and required the owners and operators thereof to make con*684tribution to the accident fund at the basic rate of two per centum on the amount of their respective pay rolls. At the time of the happening of the accident, and at the time the cause was tried in the court below, the commission was giving full force and effect to the resolution, and naturally its counsel did not suggest the question whether the work in which the person killed was engaged fell within the operation of the compensation act, but commendably stipulated every question on which it did not desire to take issue. The claim for compensation was denied by the commission on another ground, namely, that the person killed was not an employee of the warehouse company, and this was the only question contested at the trial. However, shortly after the judgment was entered, this court handed down its opinion in the case of State v. Powles & Co., in which it was held that the resolution of .the commission, in so far as it was sought to bring within the operation of the compensation act private warehouses operated in connection with a mercantile business the work in which was not in fact extra hazardous, was beyond the powers of the commission. The effect . of the decision was to introduce a new element into the case. If the warehouse in which the death occurred fell within the rule of the case cited, the accident was one for which compensation could not be lawfully made out of the funds under the control of the commission, and it found itself burdened with a judgment with the possibility of no funds, or means of creating a fund, out of which the obligation could be met.
It is doubtless the general rule that stipulations concerning facts, and perhaps stipulations concerning mixed questions of law and fact, are binding where private interests are involved, and cannot afterwards be repudiated or questioned when the effect is to set aside or reverse a judgment entered on the faith of the stip*685illation. But, however general the rule may be, I do not think it ought to be controlling in litigation of this character. The industrial insurance commission is in no sense a private litigant. Whatever may be the result of litigation in which it is a party, it as an entity neither gains nor loses. It is but the representative of a public interest, the trustee of an involuntary trust, if I may so define its functions. Through powers invested in it by legislative authority it collects from persons, firms, and corporations engaged in certain businesses called extra hazardous, funds which it disburses to workmen employed in such businesses when they are injured in the course of their employment. Losses caused by the mistakes of the administrators fall upon the contributors thereto, since the amount paid in by them is governed by the amount disbursed by the commission. Since these payments are involuntary, and since the commission is a state institution, not the private employee of the contributors, losses caused by its mistakes should not be left without a remedy where remedy is still within the power of the courts, even though to give relief may violate some settled policy of the law applicable to individual litigants. That the stipulation here was the result of a mistake, and a pardonable one, on the part of counsel representing the commission, needs only to be stated to receive sanction. The counsel was but following the settled policy of the commission as indicated in the resolution, mentioned.
Nor do I think it follows from my conclusions that the respondent must be summarily dismissed. If the place in which her husband was employed to work was extra hazardous, she is entitled to recover, even though a warehouse is not among the extra hazardous places especially enumerated in the statute. The act (Bern. Code, § 6604-2) provides:
*686■ ’ “If there be or arise any extra hazardous occupation or work other than those hereinabove enumerated, it shall come under this act, . . . ”
If,, therefore, it can be shown that this warehouse presented an extra hazardous condition for labor engaged therein, either because of its situation, its connection with another establishment, or for other causes, the respondent is entitled to compensation for the death of her husband therein. The death need not have been caused by the hazards of the place. It is sufficient if it occurs in the place or away therefrom, the person employed being, at the time of his death, in the course of his employment.
“Workman means every person in this state, who, after September 30, 1911, is engaged in the employment of an employer carrying on or conducting any of the industries scheduled or classified in § 6604-4, whether by way of manual labor or otherwise, and whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer.” Bern. Code, § 6604-3.
See, also, Stertz v. Industrial Insurance Commission, 91 Wash. 588, 158 Pac. 256.
If it be said that the clause from the compensation act quoted is not self-executing, and that it requires some action on the part of the commission, or an application on the part of the owner or operator, to bring within the operation of the act businesses not within the specific enumeration of extra hazardous businesses but which are actually so, we have here such action in the resolution of the commission. The action of the commission as evidenced by the resolution was not in itself declared void by the case of State v. Powles & Co., supra. It was but held that the commission could not, by resolution, impress an extra hazardous character on work performed in a particular place, the work in which was not, in fact, extra hazardous. The *687resolution can, therefore, operate in all places therein described in which the work is extra hazardous, a fact to be determined from the nature of the work carried on in the particular place.
The respondent then having only a possible, not a clear, right to compensation, the cause should, in justice to the parties concerned, be sent back for a retrial, not summarily affirmed.
On the second question, I agree with the conclusion of the majority.
Main, J., concurs with Fullerton, J.