Craine v. Dept. of Labor Ind. , 19 Wash. 2d 75 ( 1943 )

¹ Reported in 141 P.2d 129. Plaintiff sustained injuries while working for C.H. Turner, who was building a dwelling house for himself at 3512 McKinley avenue, Tacoma. Turner was not a building contractor nor engaged in construction work as a business. Building construction was in no way connected with his regular occupation and business.

Plaintiff filed a claim for compensation with the department of labor and industries. The supervisor rejected the claim, and, upon plaintiff's appeal to the joint board, the latter sustained the action of the supervisor. From the decision of the joint board, plaintiff appealed to the superior court for Pierce county, which found that he was entitled to compensation. From a judgment remanding the matter to the department, with directions to determine and allow compensation, the department appeals.

[1] In rejecting the claim, the department relied upon the authority of Carsten v. Department of Labor Industries,172 Wn. 51, 19 P.2d 133, wherein it was held that a carpenter employed by an ordinary householder to make repairs or improvements on his property is not a workman in contemplation of Rem. Rev. Stat., § 7675 [P.C. § 3470], defining "workman" as any person who is engaged in the employment of "any employer comingunder this act." (Italics ours.)

In that and subsequent cases, we held that, in order to be an "employer coming under this act," one must be engaged, as a regular business, in the type of extra-hazardous work involved.Dalmasso v. Department of Labor Industries, 181 Wn. 294,43 P.2d 32; Jannak v. Department of Labor Industries,181 Wn. 396, 43 P.2d 34.

If the rule laid down in those decisions is still effective, it is apparent that respondent was not a "workman" in contemplation of the act. He contends, however, that the rule has been abrogated by an amendment to the clauses of Rem. Rev. Stat., § 7675, defining employer. This amendment is contained in the Laws of 1939, chapter 41, p. 122, § 2 (Rem. Rev. Stat. (Sup.), § 7675). The decisions above mentioned construed the definition of employer as contained in the Laws of 1929, chapter 132, p. 326, § 1.

It is necessary to compare the definitions of employer as contained in these two acts in order to determine whether the legislature has repudiated the construction placed by this court upon the definition in the 1929 act. That definition reads as follows:

"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 or whocontracts with another to engage in extra-hazardous work." (Italics ours.)

The definition in the 1939 act is:

"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 orworkmen, in extra-hazardous work." (Italics ours.)

The italicized clause in the 1929 act was the portion of the definition upon which the claimants relied in the Carsten,Dalmasso, and Jannak cases. The italicized clause in the 1939 act is the portion of the definition upon which the respondent in this case relies. So, in order to make a closer comparison between the two definitions, we may break them down to read as follows: 1929, "Except when otherwise expressly stated, employer means any person . . . who contracts with another to engage inextra-hazardous work"; 1939, "Except when otherwise expressly stated, employer means any person . . . who contracts with oneor more workmen, the essence of which is the personal labor ofsuch workman or workmen, in extra-hazardous work."

It will be noted that the change wrought by the 1939 amendment consists in the omission of the words "another to engage" contained in the 1929 act, and, in their stead, substituting the words "one or more workmen, the essence of which is the personallabor of such workman or workmen."

Now, the question is whether this omission and substitution indicates a legislative intent to repudiate the rule of construction adopted by this court in the Carsten, Dalmasso, and Jannak cases. We are unable to perceive any such intent. The clauses under consideration appear in the disjunctive in both acts, so there is nothing in the way of grammatical structure in the later act which would call for a different construction from that placed on the earlier act.

Nor do we think there is any essential change of meaning in the definition of employer brought about by the omission of the words "another to engage" and the substitution of the words "one or more workmen, the essence of which is the personal labor of such workman or workmen." If anything, the clause in the 1929 act is more comprehensive than the clause in the 1939 act. See Hallerv. Department of Labor Industries, 13 Wn.2d 164,124 P.2d 559. In any event, we do not think the omission and the substitution manifest any legislative intent to modify or abrogate the rule laid down in the Carsten, Dalmasso, andJannak cases. On the contrary, we think the legislature has, in the 1939 amendment, expressly recognized and approved the rule laid down in those cases.

Reverting to the first clause of the 1939 amendment, defining employer, we find it qualified by the phrase "by way of trade or business." This is the very limitation placed by the decisions upon the definition of employer as contained in the 1929 act. In view of this qualification contained in the 1939 amendment and in view of the fact that the definition of employer as contained in the second clause of the 1929 act is in no sense broadened, we are convinced that the legislature had no intention of abrogating or modifying the rule of construction laid down in the Carsten,Dalmasso, and Jannak cases.

Respondent puts much reliance upon our recent decision inNorman v. Department of Labor Industries, 10 Wn.2d 180,116 P.2d 360. That decision was primarily concerned with the definition of "workman" as contained in the Laws of 1937, chapter 211, p. 1030, § 2, which provides:

"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."

The question at issue in that case was whether an independent contractor came within the purview of the definition. The gist of the decision is contained in the following paragraph of the opinion, p. 184:

"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 of the employment, and this, regardless of who employed or contracted for the work."

And at another point in the opinion, p. 183, it was said:

"Prior to the effective date of the 1937 amendment, an independent contractor could not receive aid from the industrial insurance fund. Since that time, however, such person is entitled to receive compensation if the essence of the work he is performing is his personal labor."

However, after quoting the two amendments — 1937, defining "workman," and 1939, defining "employer" — we said, p. 184:

"By the two amendments, it is clear that anyone, without regard for whom he is working, may come within the protection of the act if he is engaged in an extrahazardous occupation and if his personal labor is the essence of the work being performed."

Obviously, this language was unnecessary to a decision of the issue presented: whether an independent contractor was a "workman" in contemplation of the definition contained in the Laws of 1937, chapter 211, p. 1030, § 2. It, therefore, cannot be considered a conclusive interpretation of the definition of "employer" as contained in the Laws of 1939, chapter 41, p. 122, § 2.

Judgment reversed.

SIMPSON, C.J., BEALS, ROBINSON, and JEFFERS, JJ., concur.