On Rehearing.
[EnBanc. April 5, 1923.]
Main, C. J.After the opinion of the Department in this case was filed, a petition for rehearing was presented by the appellant Beverage and granted. A majority of the court are now of the view that the *665Department opinion was correct and should he adhered to except as to the last point discussed, where it was held that the judgment as to the appellant Beverage could he sustained even though it was reversed and ordered dismissed as to the other appellant, the Webh Logging & Timber Company. Upon the rehearing, this question was more fully argued than it had been when the case was heard by the Department, and after giving it further consideration, we are convinced that the Department opinion is erroneous wherein it holds that the judgment can be sustained as to Beverage, the superintendent and manager of the logging company, even though dismissed as to that company.
In Peet v. Mills, 76 Wash. 437, 136 Pac. 685, Ann. Cas. 1915D 154, L. R. A. 1916A 358, the plaintiff sought to recover from the president of the railway company by which he was employed, charging negligence, directly attributable to the president, which proximately caused the injury for which compensation was sought. It was there held that, since the plaintiff, at the time of the injury, was engaged in extra-hazardous work and was under the workmen’s compensation act, he had no right to recover, even from a third party whose negligence, as he alleged, produced the injury. In Ross v. Erickson Construction Co., 89 Wash. 634, 155 Pac. 153, L. R. A. 1916F 319, it was held that the plaintiff, who was under the workmen’s compensation act, had no right to maintain an action, for malpractice aggravating his injuries, against the physician provided by the master to furnish medical attendance, since the injury caused by such malpractice was proximately attributable to the original hurt and grew out of the employment. In Zenor v. Spokane & Inland Empire R. Co., 109 Wash. 471, 186 Pac. 849, it was held that the plaintiff, being under the workmen’s compensation *666act and in the employ of the city of Spokane at the time he was injured by coming in contact with the; electric wires of the defendant company, had no right of action against that company, and that his full measure of recovery was what he was entitled to out of the industrial insurance fund. The effect of the holding in those cases is that an injured workman who is under the workmen’s compensation act, and whose injury grew out of his employment, has no right of action, either against his employer or against a third person, except as provided in the act. In the Peet case, supra, it was said:
“The act contains its own declaration of legislative policy, in reciting in § 1 that the common law system in dealing with actions by employees against employers for injuries received in hazardous employments is inconsistent with the modern industrial conditions, uneconomic, unwise and unfair, and that, as the welfare of the state depends upon its industries and even more upon the welfare of its working men, the state of Washington, in the exercise of its police and sovereign power, declares its policy to withdraw all phases of the premises from private controversy regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation except as provided in the act; ‘and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, .except as in this act provided.’ ”
If, then, the respondent had a right to maintain an action against his employer or against Beverage, the superintendent of such employer, it must be by reason of some provision in the act giving such right. The judgment, as pointed out. in the opinion of the Department, was not sustained as to the logging company, the employer, because the respondent Perry had failed *667to prove what his excess of damages would be over the amount received or receivable under the workmen’s compensation act. By § 6 of the workmen’s compensation act (Laws of 1911, p. 361; § 7680, Rem. Comp. Stat.), a right of action is reserved to the injured workman where his injury results from the deliberate intention of his employer to produce such injury, and he has a right to take under the act and also a cause of action against the “employer,” as if the act had not been enacted, “for any excess of damages over the amount received or receivable under this act.” The right of action here reserved is against the employer. Beverage was not the employer, but the superintendent and manager of the logging company which was the employer of the respondent. Either one of two situations is presented: If the term “employer” used in the statute be construed as broad enough to include the superintendent and manager, then it would follow that the respondent’s ease would fail as to Beverage for the same reason that it failed as to the logging company. On the other hand, if the word “employer” be construed as not sufficiently broad to include the superintendent and manager, who was the active agent in producing the injury, then the judgment as to Beverage could not be sustained because the respondent, having sustained an injury which grew out of his employment and having no right of action reserved to him in the statute, would not be entitled to recover against Beverage, a third person, under the doctrine of the cases above cited. It seems an anomaly to say that one who has been injured by the deliberate intention of another to do injury does not have a right of action against such person; but the doctrine is well settled by the decisions of this court to which attention *668has been called, and so long as those decisions remain undisturbed the result cannot be otherwise.
The judgment will be reversed as to both appellants' and the cause directed to be dismissed.
Holcomb, Bridges, Mackintosh, and Mitchell, JJ., concur.