(dissenting) — As pointed out in the majority opinion, this is an industrial insurance case in which the board of industrial insurance appeals sustained the- action of the supervisor of the department of labor and industries and rejected a claim for benefits under the industrial'insurance act. On appeal, the superior court for King county reviewed the record as made and considered by the board and entered findings of fact and the following conclusions of law:
“I That the plaintiff at the time of her injury was an independent contractor doing extra-hazardous work in the logging industry and the essence of her contract was her personal labor.
“II That at the time of her injury the plaintiff herein was covered by the Workmen’s Compensation Act and is entitled to all the benefits thereto.
“Ill That the decision of the Board of Industrial Insurance Appeals herein should and is hereby reversed and the claim of the plaintiff should be referred to the Department of Labor and Industries and the said Department should be *479directed to proceed in accordance with the findings of this court.
“IV ...”
The judgment of the superior court reversed the action of the board. This appeal followed.
Appellant’s assignments of error raise one basic question: namely, whether the relationship between the Steiner mill and Mr. and Mrs. White entitled the latter to industrial insurance benefits under the following provisions of the industrial insurance act:
“The term workman within the contemplation of this act means every person in this state who is engaged in the employment of or who is working under an independent contract, the essence of which is his personal labor for any employer coming under this act whether by way of manual labor or otherwise in the course of his employment.” Rem. Rev. Stat. (Sup.), § 7674-1 [cf. RCW 51.08.180]. (Italics mine.)
“Except when otherwise expressly stated, employer means any person, body of persons, corporate or otherwise, and the legal personal representatives of a deceased employer, all while engaged in this state in any extra-hazardous work, by way of trade or business, or who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen, in extra-hazardous work.” Rem. Rev. Stat. (Sup.), § 7675 [cf. RCW 51.08.070] (Italics mine.)
Respondent concedes that she and her husband were independent contractors at the time she was injured. Consequently, the question to be determined narrows down to the proposition of whether the personal labor of Mr. and Mrs. White was the essence or sine qua non of the contract of employment with the Steiner mill.
The facts are substantially as stated in the majority opinion. From these, the majority reasons, among other things, that Mr. Lydey became an employee of Mr. and Mrs. White; that because the Whites thus became employers, their personal labor could not be the essence of their contract with the Steiner mill. However, it appears to me just as logical to conclude from the facts that, in so far as the Whites were concerned, the arrangement with Mr. Lydey was purely an accommodation to the Steiner mill — Mr. *480Lydey merely stepped into the shoes of the faller and bucker theretofore employed by the mill; that the Whites in making the arrangements with Mr. Lydey were not principals, but merely agents of the mill.
The majority further emphasize the fact that the'contract with the Whites contemplated the use of the donkey engine which the Whites owned. Therefrom, it is reasoned that the donkey engine became a significant factor in the contract, and that as a consequence, the personal labor of the Whites could not be said to be the essence of their contract with the mill. In this connection, the majority state that the status of an employee is not changed into something else merely because he owns and uses certain mechanical equipment rather than ordinary hand tools in the performance of his work as an employee. Rem. Rev. Stat. (Sup.), § 7675, defines an employer as one “ . . . who contracts with one or more workmen, the essence of which is the personal labor of such workman or workmen . . . ” It is difficult for me to see how the use of a donkey engine or other mechanical equipment changes the meaning of the phrase, the es-sense of which is the personal labor, when used in relation to an independent contractor, but does not do so in relation to an employee or workman. In any event, I think the arrangements between Mr. Lydey, the Whites and the Steiner mill — and the fact that the donkey engine owned by the Whites was used in their work — did not prevent the personal labor of the Whites from being the essence of the contract with the Steiner mill.
In Norman v. Department of Labor & Industries, 10 Wn. (2d) 180, 116 P. (2d) 360, this court referred to the above-quoted statutory provisions as the 1937 and 1939 legislative amendments to the industrial insurance act. The court pointed out that an independent contractor was not entitled to industrial benefits prior to the enactment of the 1937 statutory amendment, above quoted, saying:
“We hold that it was the intention of the legislature to broaden the industrial insurance act, and bring under its protection independent contractors whose personal efforts constitute the main essential in accomplishing the objects *481of the employment, and this, regardless of who employed or contracted for the work.” (Italics mine.)
In Haller v. Department of Labor & Industries, 13 Wn. (2d) 164, 124 P. (2d) 559, this court said:
“Manifestly, the legislature intended, by the enactment of the two amendments, to extend industrial insurance protection to some, but not all, independent contractors whose contracts call for the performance of extrahazardous work. Whether or not, in a given case, an independent contractor is a ‘workman’ must, we think, depend upon the provisions of the contract, the nature of the work to be performed, the situation of the parties, and other attendant circumstances.” (Italics mine.)
A number of state legislatures have been confronted with the common-law definition of “independent contractor,” which potentially excludes large groups of industrial workers from the protection of industrial insurance, and have enacted legislation to meet the problems involved. Louisiana has provided coverage for an independent contractor when a “substantial part” of his work time is spent in “manual labor” in carrying out the terms of the contract; La. Rev. Stat. (1953), § 23:1021. Wisconsin has included within the coverage of its act an independent contractor, doing work which is part of his employer’s business, while not holding himself out as rendering services to the public; Wisc. Stat. (1943), § 102.07 (8). Colorado has provided that any “lessee, sub-lessee, contractor or sub-contractor,” as well as his employees, is an employee of any one who conducts his business by leasing or contracting out any or all of his work to them; Colo. Rev. Stat. (1953), § 81-9-1.
In the brief of the attorney general in the Haller case, supra, the intention or purpose of the legislature in enacting the 1937 and 1939 amendments, above quoted, is interestingly and aptly explained as follows:
“In passing the 1937 and 1939 amendments, the legislature was undoubtedly seeking to cure a practice which had grown to alarming proportions whereby employers let labor contracts to individuals, either singly or collectively, under the guise of independent contracts and thereby sought *482to escape liability for industrial insurance premiums. The essence of such contracts was the performance of personal labor by the contractors. The legislature felt, and rightly so, that labor contracts which involved nothing more than the performance of labor by one or a group of persons should not be perverted into an independent contract with the usual common law incidents of such a relationship; that the letting of a labor contract directly to one or a group of individuals on a lump sum basis rather than a per diem or hourly wage basis was a mere subterfuge which required legislative correction.” (Italics mine.)
In cases of industrial insurance claims involving an independent contractor relationship, it is the contract between the parties — or rather, the question of what would constitute performance of the contract — that should be emphasized. It is not a question of whether the work or the job contemplated by the contract, actually, as a matter of fact, could have been performed in whole or in part by someone other than the claimant. The test should be whether the work or job performed by someone other than claimant would constitute performance of the particular contract. Perhaps the distinction lies in' the difference between the phrase, “performance of the work” and the phrase, “performance of the contract.” The determining factor is not whether the work required the labor of one or more workmen other than the claimant, or that the work, as a matter of fact, could have been done by a workman or some workmen other than the claimant. A high percentage of industrial work could be performed by any number of industrial workmen. In enacting the 1937 and 1939 amendments, the legislature certainly did not intend to limit coverage under the act to the relatively few independent contractors (workmen) whose work was so unique that it could not in fact (irrespective of the particular contract) be performed by anyone else. The question determining the matter of coverage under the act is not whether the work in fact could be done by another workman, but whether work done by someone other than the contracting party or worker would have constituted performance of the particular contract.
*483As mentioned hereinbefore, the decision of the board in the instant case states:
“It was understood by the parties that both Mrs. White and her husband would work. Mrs. White’s duties to consist of operating the donkey engine.”
The record before the board further shows that the Whites usually worked when the mill was being operated, but, when the supply of logs was short and they were requested to do so, the Whites worked longer hours. Furthermore, from time to time, the mill required the Whites to supply logs of different lengths, depending on the lumber to be cut or manufactured by the mill. It appears to me that, if Mr. and Mrs. White had sent someone else on the job who then yarded and decked logs for the mill, this would not have constituted performance of the Whites’ obligation to the Steiner mill. I do not think the Whites could have forced such a new arrangement on the mill and thereupon collected at. the prescribed rate for all logs yarded by someone other than themselves. Their personal labor was the essence of the contractual relationship.
I think that from the outset of the arrangement with the Steiner mill the Whites were either (1) employees of the mill or (2) were independent contractors covered by the act. The nature or character of the relationship continued, despite the discharge by the mill of the faller and bucker, originally employed, and the subsequent arrangements between the Whites, Mr. Lydey, and the mill.
Considering (a) the intent or purposes of the legislature in enacting the 1937 and 1939 amendments, as emphasized in the quotation above from the Norman case, (b) the problem involved in the enactment of the amendments, as emphasized by the above quotation from the brief of the attorney general in the Haller case, (c) the trend of legislation in other jurisdictions, (d) the statement of this court in the Haller case, indicating that the facts and circumstances must be considered and will be controlling in cases involving application of the 1937 and 1939 amendments, and (e) the facts and circumstances in the instant case, I *484am persuaded that Mrs. White’s personal labor was essential to the performance of the particular contract. It is true that Mr. White’s personal labor was essential to performance. Thus, with the personal labor of one, but without the personal labor of the other, there could have been no performance of the particular contract. It follows that the personal labor of each and of both was essential to the performance of the particular contract.
Appellant emphasizes the fact that Mr. White and Mr. Lydey, the faller and bucker, supplied logs to the mill after Mrs. White was injured. It is urged that this indicates the personal labor of Mrs. White was not of the essence. However, I think it is. clear that the work performed after Mrs. White’s injury was pursuant to a new arrangement or contract between the mill and Mr. White and Mr. Lydey, or under a modification of the contract existing at the time of Mrs. White’s injury.
I agree with the trial court that the essence of the contract was the personal labor of Mrs. White (respondent-claimant herein). I would affirm the judgment of the trial court.
Rosellini and Ott, JJ., concur with Finley, J.