(dissenting) — I am compelled to dissent from the conclusion reached by the court in this cause. In my opinion, the court is in error in holding, as it held in its original opinion and now here affirms, that the respondent Perry was, at the time the battery was committed upon him, an employee of the appellant logging company, and thus subject to the provisions of the workmen’s compensation act; and in error in the conclusion that the cause must be concluded here, even assuming that the first position is without error.
Perhaps it will aid to clarity if I state the facts somewhat more fully than they are stated in the majority opinion. At the time of and prior to the occurrence which gives rise to the action, the appellant logging company was engaged in logging near Duckabush, in Jefferson county. The appellant Beverage was the superintendent of the logging company in charge of its camp. The respondent was in the employ of the company as a bucker. A bucker,' it may be explained, is a workman who follows the tree-fallers and cuts the fallen trees into suitable sawlog lengths. Perry was not employed as a day laborer at a fixed compensation per day, but was employed to work by the piece as it were; his compensation being fixed at a certain sum per thousand feet, board measure, for the logs bucked, to be determined by a scale of the logs. *669On the morning of the day on which the battery occurred, the respondent gave notice to the superintendent that he would quit his employment on that day, and requested that a scaler be sent out to scale the logs bucked by him. The company had no log-scaler then at the camp in its own employ, but there was at the camp an employee of the government forestry service competent to make such a scale, and the superintendent requested him to make it. The employee complied with the request, going to the respondent’s place of work to make the necessary measurements, and computing the quantities in the evening at the close of the day. The total quantity was less than the respondent claimed it should be, and he so complained to the scaler. The battery for which the respondent sues was a consequence of the dispute between the scaler and the respondent over the correctness of the scale.'
• The pleadings made no issue on the question which the majority find determinative. The respondent framed his complaint on the theory that his employment had then ceased, and the answers of the appellants did not make it an issue; they consisted of denials of the matters on which liability was based, and affirmative pleas to the effect that the battery was committed by the superintendent in defending against an assault made upon him by the respondent. Nor was the evidence directed to this question. The respondent was not questioned on the matter at all, and the only reference to it is found in the testimony of the superintendent. When this officer of the appellant was on the witness stand, he was questioned concerning the scaler’s attitude towards the respondent while the dispute concerning the scale was in progress. After the *670examination on that point was concluded, the following appears:
“Q. Now, while we.are on that point, tell how it happened that Mr. McArdle happened to make this particular scale of logs for Mr. Perry? A. Well, we just had one set of fallers and buckers there at the time; we did not have any scaler there at the time; and Mr. McArdle was there. Mr. Perry told me in the morning that he wanted to quit that evening; and I went and asked Mr. McArdle if he would go and scale up. I didn’t know just what time Mr. Perry quit work, hut it must have been sometime in the afternoon, because it was scaled up.”
There is the further circumstance (mentioned in the majority opinion) that the respondent had his evening meal at the camp. But this circumstance I cannot conceive has any bearing upon the question. The fact appears in the evidence and nothing more. It is not shown that he was to receive his board as part of his compensation, and if we are to indulge in surmises, my conclusion would be opposed to the conclusion seemingly drawn by the majority. It is a well known fact that, while logging companies maintain boarding houses for the convenience of their employees, the employees are charged at least a sufficient sum for board to cover the cost of its maintenance.
It seems to me, therefore, that this record falls far short of conclusively establishing that the relation of employer and employee existed between the logging company and the respondent at the time the assault and battery occurred. Indeed, I can reach no other conclusion than the conclusion that the relation had terminated some hours prior thereto. It is not the general rule that an employee’s contract of employment continues from the time he ceases his work thereunder until he receives his pay. These happenings by *671no means always follow in regular sequence, and the general rule is the other way. There is no reason why the general rule is not applicable in the present instance. The respondent had announced his intention to quit at the close of the day’s labor and the appellants had assented thereto. "When he ceased labor at the agreed time, manifestly the relation of employer and employee ceased, and the relation of debtor and creditor thereafter existed. As a creditor, the respondent had the right to go to the office of the logging company to collect the money due him, and, of course, was not a trespasser in so doing. He stood on the same plane that any other creditor would stand, and has the same remedy for a wanton assault and battery made upon him that any other creditor would have under like circumstances.
The cases cited by the majority to sustain a contrary view are, in my opinion, not in point. In the first place, they are severally controversies between the injured workman and the insurance commission itself; the one contending that he is within the insurance law, and the other contending that he is not. In such instances the courts give to the insurance act a broad and liberal construction and resolve every doubt in favor of the injured workman. But such is not the rule where the contest is between the employer and employee, especially where the former is attempting to invoke the act to escape the consequences of a wanton injury.
■ In the second place, in none of the cited cases had the contract of employment between the employer and employee finally terminated; that is, terminated in the sense that the employee was no longer to continue in the employment. The case of Pace v. Appanoose County, 184 Iowa 498, 168 N. W. 916, involved a death *672claim — the person on whose death the claim was based having been killed while driving an engine from a place where it had been taken for repairs to a place where it was intended to be used by the driver in repairing a road. Seemingly it could hardly have been determined otherwise than that the injury arose “out of” the employment, the point upon which the decision turned. But the case is to me somewhat out of the ordinary in another aspect. Notwithstanding the court, after a somewhat extended argument, concluded that the accident fell within the compensation act, it finally dismissed it on another ground; namely, that the person killed was not an employee within the meaning of the act, but was an independent contractor, and for that reason not entitled to recover under the act. Seemingly, if this conclusion was correct, the question first discussed was moot.
Stacy’s case, 225 Mass. 174, 114 N. E. 206, was also a death case; the person on whose death the claim was founded having been drowned by breaking through the ice of a lake over which he was traveling while on his way home after ceasing his day’s work.
In Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586, 162 N. W. 921, the employee was injured while on his way from the scene of the logging operations to the place appointed by the employer as the place of payment, and it was held that, at the time of his injury, he was in the course of his employment and entitled to compensation from the insurance commission. Conceding these cases to have been correctly decided, I am unable to conceive how they can be at all analogous to the situation now before us. There was no question in any of them as to the termination of a contract of employment; the continuation of the employment was in each of them conceded, the only ques*673tion being whether the death or injury arose out of, or was caused or received while the sufferer was in the course of, his employment. Here the question is not that; it is whether the injury was received while the respondent was still in the employment of the appellant logging company, and, in my opinion, they have no bearing upon that question.
I am of the opinion, moreover, that the majority have gone too far afield in their search for authority. This court has had before it upon two occasions the question'when and when not a servant can be said to be in the employment of the master. In Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586, the plaintiff was employed as a tracklayer for the defendant under a contract fixing his compensation at a certain sum per day, and in addition thereto his transportation to and from his home to his place of work. At the close of his day’s work, while riding on a regular passenger car of the defendant to his home, he was injured through the negligence of the operator of the car. He sued in damages, and the company sought to defend on the ground that he was, at the time of the injury, still in the company’s employment, and that, in consequence, he could not recover because of the fellow-servant doctrine. The court denied the defense, holding that his employment ceased with the cessation of his labor, and that while riding home he occupied the position of any other passenger.
In Baird v. Northern Pac. R. Co., 78 Wash. 67, 138 Pac. 325, a similar state of facts was presented. The plaintiff was employed as a day laborer in a gravel pit. There was no contract to carry him to and from his place of work, but he, with other employees, was per*674mitted, while so going, to ride upon an engine of the railway company. When so riding, he was injured by the negligent act of the engineer. The action was for damages on account of the injuries, and the railway sought to defend on the ground that the contract of employment had not terminated, claiming, in consequence, that the injury was the result of the negligence of a fellow servant. Answering the objection, the court used this language:
“Nor do we think the court erred in refusing to instruct the jury that the respondent and engineer were fellow servants at the time of the accident, and that, if the respondent was injured through the engineer’s negligence, the appellant would not be liable. The appellant contends that, under the facts of this case, the respondent was still in the employ of the railroad company. It is obvious that if he was not, he could not have been a fellow servant of the engineer, who was in such employ. The case seems to us to fall squarely within the rule announced in Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586, where this court said:
“ ‘We think that when the respondent had ceased his day’s work at track laying, he was not in the employ or under the control of the appellant until he again resumed track laying under the superintendency of Linder, the foreman of the track gang. Linder certainly had no control over the respondent while going to and from his work, and the respondent was not under any obligation to go to and from his work of track laying on the cars of the appellant. At six o’clock his day’s work ended. He had no rights and no privileges on that car, other than or different from those of any other passenger. He was not required to perform services on the car. He was under the control of the conductor of the car and not of his own foreman, just as any other passenger on the car.’
“The evidence here shows that the respondent’s day’s work ended when he ceased his labors at the pit *675at six 0 ’clock. After that he was at liberty to proceed to his home in any manner he saw fit. He was no longer under the control or direction of the appellant or any of its employees or agents. The mere fact that he was permitted, if he so desired, to ride upon the engine to a place near his home did not prolong his hours of service or make him a fellow servant of the engineer. Moronen v. McDonnell (Mich.), 143 N. W. 8; Dickinson v. West End St. R. Co., 177 Mass. 365, 59 N. E. 60, 83 Am. St. 284, 52 L. R. A. 326; Fletcher v. Baltimore & P. R. Co., 168 U. S. 135; Stone-Webster Engineering Corporation v. Collins, 199 Fed. 581.”
I am unable to distinguish these cases from the case in hand. Obviously, no different rule of law should be applicable to the contract of a laborer who agrees to work at track laying or in a gravel pit, with reference to the termination of the contract, than is applicable to a laborer whose contract is to buck logs. If the employment of the former terminates with the cessation of the actual service, so does the latter.
The workmen’s compensation act covers only those instances where the injury occurs to an employee while he is “in the course of his employment.” This phrase will, of course, where it is necessary to the due administration of justice, be given a liberal construction. But, in my opinion, it is going far beyond even liberality to construe it as covering an instance, such as the one at bar, where the employment has been terminated in its entirety by the mutual agreement of the parties before the injury occurs, and the employee is at the premises of the employer for the sole and only purpose of collecting the balance due him for his services ; and, especially so, where the question is not an issue in the pleadings, and the facts relating to it appear only incidentally in the evidence as explanatory of another phase of the case.
*676But, conceding the foregoing branch of the case to be correctly determined by the majority, I think they are in error in their disposition of the cause. It is not the rule that a workman engaged in an extra-hazardous occupation, who is injured in the course of his employment, is in all instances barred from an action in damages against his employer. By the sixth section of the workmen’s compensation act, it is provided that, where the injury results to a workman from the deliberate intention of the employer, the workman has a cause of action against him, “as if this act had not been enacted,” for any excess of damage over the amount received or receivable under the act. The evidence in the particular case abundantly justified a finding on the part of the jury that the injury to the respondent was wilfully and intentionally inflicted.
These propositions are not denied in the majority opinion; on the contrary, they are directly conceded, but it is held that, since the respondent did not show what sum he was entitled to receive from the industrial fund, so that the amount could be deducted from the total sum of his injury, there was not sufficient evidence before the jury on which to base a verdict, and it is concluded from this fact that the action cannot be reversed for a new trial, but must be dismissed with prejudice against a further prosecution of the cause. This, to me, erroneous conclusion is based upon the manner by which the appellant raised the question. It is not denied that had the appellant followed the statutory procedure and moved for a nonsuit, challenged the sufficiency of the evidence, moved to set aside the verdict, or moved for a new trial, and the motion had been denied by the trial court, this court would, on a reversal of the judgment, have sent the case back to the trial court to be dealt with as the evi*677dent justice of the case required. But it is held that because the appellant has chosen to waive these statutory motions and interposes in lieu of some one of them a non-statutory motion — the common law motion for judgment non obstante veredicto — it has thereby tied the court, hand and foot, leaving it without discretion or option, if it finds that the evidence is incomplete, to do more than direct a judgment in favor of the mover. It is this conclusion which I think untenable. It seems to me to be not only a violation of the general spirit and intent of the practice act, but is in direct violation of that provision of the code relating to appellate procedure (Rem. Comp. Stat., § 1737) which empowers this court upon an appeal from any judgment either to “affirm, reverse or modify any such judgment . . . direct the proper judgment or order to be entered; or direct a new trial or further proceedings to be had; . . . ” As I view these statutes, they were enacted for the express purpose of enabling the court to escape the rigid practice rules of the common law, and I cannot understand why it is not applicable to any form of motion, whether statutory or common law. It seems to me that not to so hold is to hark back to those ancient days when matter of the procedure was regarded as of more importance than the substance of the issue, and where, too often, the rights of the litigants and the justice of the cause were sacrificed to an adherence to form. The sole purpose of the reformed procedure, of which the statute above cited is a part, was to correct this evil, and, in my judgment, the statute should be given effect.
I do not deny, of course, that this court has many times sustained a motion for a judgment notwithstanding the verdict and dismissed the action. But these have all been instances where it conclusively ap*678peared, either from the evidence of the plaintiff himself or from the evidence introduced on the part of the defendant, that the plaintiff under no circumstances could recover. In such a case it is eminently proper to dismiss the action; this, if for no other reason, because it would be an idle ceremony, a waste of time and substance, to further prosecute it. But this is the first time the court has so concluded where the plaintiff has a valid cause of action and has failed of recovery because of mere error on the part of the trial court. Not only have we not heretofore so held, but we have at least in one case announced a contrary doctrine. In Spokane Grain Co. v. Great Northern Express Co., 55 Wash. 545, 104 Pac. 794, the action was for the conversion of certain animals. At the close of the plaintiff’s case, and at the close of all of the evidence, the defendant moved for a directed verdict. Each of these motions was denied, and the case submitted to the jury. On the return of a verdict for the plaintiff, a motion for a judgment non obstante veredicto was interposed. This motion was also denied and a judgment was entered upon the verdict. On appeal this court held that the plaintiff had mistaken his remedy, and that the court should have sustained the latter motion, but it did not direct the entry of a judgment which would forever bar a recovery on the part of the plaintiff; it directed that the cause be dismissed without prejudice to the right of the plaintiff to prosecute a proper action. Manifestly, if the court had then entertained the view it now entertains, it would have made the proceeding final.
.The cases from this court the majority cite as sustaining the rule are, in my opinion, wholly beside the question. In none of them was the question presented, and in none of them was it decided. It is true that in *679Brown v. Walla Walla, 76 Wash. 670, 136 Pac. 1166, the court did say that the motion for judgment notwithstanding the verdict invoked no element of discretion, and called only for the exercise of the purely judicial functions of the trial court and this court on review, but we were there distinguishing between the powers of the trial court, when such a motion was presented, and its powers on a motion for a new trial; pointing out that the one could not be granted where there was evidence or inference from evidence tending to support the issue, while on the other there was invoked a “compound of the discretionary and judicial functions” of the court, permitting the granting of the motion, even though there might be evidence or inference from evidence supporting that side of the issue opposed to the party urging the motion. There can be no doubt as to the soundness of the distinction made, but it is far from deciding that, on the granting of a motion for judgment notwithstanding the verdict, there can be but one judgment entered, namely, a judgment finally determining the action.
The case of Roe v. Standard Furniture Co., 41 Wash. 546, 83 Pac. 1109, as I read it, opposes rather than supports the principle to which it is cited. In that case the appellant’s counsel, urging that the motion could not be entertained under the circumstances there shown, pointed out that it was a common law and not a statutory motion, and that at common law it was a motion for the plaintiff alone and was addressed to the sufficiency of the defense, and could not be invoked by a defendant against the plaintiff’s cause of action; arguing that, since the statute did not recognize the motion, it should be given its common law effect. The court, answering the objection, stated that the “appellant’s statement of the early common law rule is *680historically correct, but the practice in this state has been modified, and such modification is warranted by certain provisions of our code hereinafter mentioned,” and later on cited as authority for its statement the very section of the statute I have mentioned and in part quoted. Manifestly, it seems to me, if the statute so far modifies the common law rule as to permit the court to entertain the motion under circumstances which the common law did not permit it to be entertained, it also so far modifies the rule as to permit the court on reversal to direct that form of judgment the justice of the case requires. The court did, it is true, later on in the opinion use the language the majority quote, and I do not question that the language was appropriate to the point to which it was directed. But the court was discussing the power of the trial court to grant such a motion; it was not said, nor do I think meant to be said, that when the evidence was insufficient merely because the trial court misconceived the applicable principles of law, it was without power, because of the form of the motion, to correct its evident mistake.
Nor am I able to find that the courts elswhere have sustained the rule now here announced by the court. It is conceded by the majority that the courts of Minnesota and North Dakota announce a contrary doctrine, but the cases from these courts are dismissed with the statement that there are in those states statutory enactments upon the subject. But had the court set forth the statutes, it would have appeared that the statutes in no manner attempt to direct or control the action of the court when applying the statutory procedure; it would have appeared that they simply provide for such a procedure, leaving the courts free to *681determine the proper remedy. Being such, the statutes are but declaratory of what we recognize to be the common law rule, and I can see no reason why the cases have not the authority they would have were there no statute at all upon the subject.
But the more pertinent cases, in my opinion, are those from the state of New York. In that state there is a statute, similar to the statute from this state I have before quoted, empowering the court on appeal to “reverse or affirm, in whole or in part” the judgment appealed from, to direct the proper judgment to be entered, or to grant a new trial. Under this statute, it is the uniform rule of the appellate courts of that .state, where it finds the evidence insufficient to sustain the judgment of the court below, to direct such a judgment as the justice of the case requires. If it appears that under no circumstance can the plaintiff recover, it will direct a final judgment; on the other hand, if it appears that the mis-trial arose, or if the question is even doubtful, it will direct a new trial. In Griffin v. Marquardt, 17 N. Y. 28, this language is used:
“It is proper to say, and to say it with great distinctness, as the opinion of this court, that extreme caution ought to be exercised in refusing new trials where judgments are reversed. The discretion of the appellate court should be exercised in that direction only in cases where it is entirely plain, either from the pleadings or from the very nature of the controversy, that the party against whom the reversal is pronounced cannot prevail in the suit.”
In Foot v. Aetna Life Ins. Co., 61 N. Y. 571, it is said:
“It is not sufficient to refuse a new trial, that it is highly improbable that the party defeated upon the appeal can succeed upon the new trial. It must appear that he certainly cannot.”
*682In Edmonston v. McLoud, 16 N. Y. 543, it is said:
“But it is insisted that the Supreme Court upon such reversal was not authorized to render final judgment. The case of Astor v. L’Amoreux (4 Seld. 107) is relied upon to sustain this position. In that case the plaintiff had recovered a judgment in an action for rent. There was no pretence that the allegations in his complaint were not sufficient, if proved, to sustain the action. He had given such proof as induced the court, at the trial, to render judgment in his favor. Upon appeal, the superior court reversed the judgment, and instead of ordering a new trial, rendered final judgment for the .defendant. This was clearly wrong. It was impossible for the appellate court to know that, though it might deem the proof which had been given insufficient to sustain the judgment, the defect might not be supplied upon another trial.
“But where the appellate court can see that no possible state of proof, applicable to the issues in the case, will entitle the party to a recovery, it is not necessary, or even proper, that a new trial should be awarded.”
See, also: Benedict v. Arnoux, 154 N. Y. 715, 49 N. E. 326, and the cases therein collected.
It would be interesting to review the decisions of other states upon the question, but time and space forbid. I will say, however, that, in so far as my investigations have gone, in all, or practically all, of the states it is proper in some form to challenge the legal sufficiency of the evidence to sustain the plaintiff’s cause of action. The more common method is to move for a nonsuit at the close of the plaintiff’s evidence, to move for a directed verdict at the close of the entire evidence, or, after verdict, move in arrest of judgment or for a new trial; it is only in a very few of the states that the motion here in question is recognized as a regular form of procedure. There is not even then, a unanimity of opinion as to the proper disposition to *683be made of the case after the challenge is made and denied in the lower court and sustained on the appeal. Some of the courts hold that there must be a new trial in all cases, and such is the rule of the United States Supreme Court. Slocum v. New York Life Ins. Co., 228 U. S. 364. Others again adopt the rule of the New York courts, namely, that the state of the record will control the direction; if it appears from the evidence that the plaintiff can under no circumstances recover, a judgment against him will be directed; if, on the other hand, it appears that the want of sufficient evidence is due to an error of the trial court, or that it is possible for the plaintiff to sufficiently prove his case on another trial, a new trial will be granted. None of the courts, however, make a distinction in the governing rule because of the form of the motion. In this respect this court, by reason of the present decision, stands alone on that question.
In my view of the case, the judgment appealed from should stand affirmed, or, if not this, it should be reversed and remanded for a new trial.
Tolman and Pemberton, JJ., concur with Fullerton, J.