June 25, 1953. WORKMEN'S COMPENSATION — RIGHT TO BENEFITS — EFFECT ON RIGHT OF ACTION AGAINST THIRD PARTY — SELF-EMPLOYED INDIVIDUALS. Under RCW 51.32.030, a self-employed individual engaged in any extrahazardous industry, with or without employees, can, if he so desires, qualify himself as an "individual employer" to receive the benefits of the workmen's compensation act as a workman; however, where a self-employed individual has not qualified himself for such benefits, he is not barred by the proviso in RCW 51.24.010 from maintaining a common-law action for negligence causing him injury against a workman or employer under the act who at the time of the accident was engaged in extrahazardous employment under the act (overruling Pink v. Rayonier, Inc., 40 Wn.2d 188, 242 P.2d 174). TRIAL — TAKING CASE FROM JURY — MOTION FOR NONSUIT — HEARING AND DETERMINATION. Where the defendant's motion for dismissal was made at the close of the plaintiff's case, the plaintiff's evidence and all reasonable inferences therefrom must be considered in the light most favorable to him and interpreted most strongly against the defendant.
[5] Second, the fact that a man actually engaged in extrahazardous industry is an independent contractor not covered by the workmen's compensation act under the provisions of the Laws of 1937, chapter 211, § 2, p. 1030 (Rem. Rev. Stat. (Sup.), § 7674-1 [ cf. RCW 51.08.180, part]), does not prevent him from having the protection of the act if he desires to qualify as a working employer under the Laws of 1939, chapter 41, § 2, p. 123 (Rem. Rev. Stat. (Sup.), § 7675, part [ cf. RCW 51.32.030]), gives the necessary notice to the director of labor and industries, and pays the necessary premiums. Pink v. Rayonier, Inc. (1953), 42 Wn.2d 768, 259 P.2d 629, (1952) 40 Wn.2d 188, 242 P.2d 174; Latimer v. Western Machinery Exchange (1953), 42 Wn.2d 756, 259 P.2d 623, (1952) 40 Wn.2d 155, 241 P.2d 923; Johnson v. Department of Labor Industries (1949), 33 Wn.2d 399, 205 P.2d 896. The fact that in the Latimer and Pink cases the injured parties found it more advantageous to be outside the protection of the act does not change the fact that they could have been under its protection if they had so desired. The judgment is reversed.
I have signed the majority opinion overruling the decision of Department Two in the Latimer case, 40 Wn.2d 155, 241 P.2d 923. However, because I signed the original opinion in the Latimer case, supra, and wrote the original opinion for Department Two in the case of Pink v. Rayonier, Inc., 40 Wn.2d 188, 242 P.2d 174, where we followed the rule theretofore announced in the original Latimer case, supra, I wish to assume my full share of responsibility for our opinions in those cases and for our subsequent decision here to overrule the original Latimer opinion. With this in mind, I feel compelled to elaborate to some extent on my personal views respecting the main questions involved in rehearing the Latimer case. In the opinions heretofore rendered by Department Two in the Latimer case, supra, and the Pink case, supra, we held that a self-employed individual, engaged in extrahazardous work as a business or occupation, was an employer under our workmen's compensation act, and was barred by the act from asserting a common-law cause of action for personal injury against another employer when the latter is engaged in extrahazardous work and is covered under the act, irrespective of whether such self-employed individual, or employer, had qualified for benefits under the industrial insurance act. Petiti