The opinion
Rosellini, J.
(dissenting) — The majority admit that § 2, Laws of 1939, chapter 41, p. 121 [cf. RCW 51.24.010], may be arbitrary and unreasonable under the results reached in Latimer v. Western Machinery Exchange, 42 Wn. (2d) 756, 259 P. (2d) 623 , and Jewett v. Kerwood, 43 Wn. (2d) 691, 263 P. (2d) 830 , but decline to declare the statute invalid because they conclude that such an attack upon the statute is hypothetical and not necessarily pertinent to the instant case.
In the Jewett case, we held that an employer driving his own truck in an extrahazardous occupation who negligently injured an employee engaged in another extrahazardous employment was immune from suit by the injured workman.
We held in the Latimer case and in Pink v. Rayonier, Inc., 42 Wn. (2d) 768, 259 P. (2d) 629 , that a self-employed individual engaged in an extrahazardous occupation is not barred from asserting his common-law action against another employer, or his employee, covered by the industrial insurance act.
*180 The rationale of these cases inevitably will lead to the result that an employee who negligently injures an employer other than his own is subject to a common-law action, although he is barred from maintaining such an action if he is injured by that employer.
It is a well-settled rule of law that a statute cannot be sustained where it appears that the classification applies in some instances and does not apply in other cases essentially not different. In the case of Grasse v. Dealer’s Transport Co., 412 Ill. 179 , 106 N. E. (2d) 124, a provision similar to § 2, supra, was declared unconstitutional on the ground that the classification was arbitrary and unreasonable. The court stated:
“Those injured by third party tort-feasors bound by the act are not entitled to common-law damages from such persons, whereas those injured by third party tort-feasors not bound by the act are allowed to institute actions for damages. Both classes of injured employees máy be entitled to compensation from their own employers, so that the amount of compensation, if any, received by the injured employee is not the basis for differentiation between the classes. Nor is there any basis for differentiation from the nature of the injuries sustained, or from the activity of the employee at the time of the injury, or from any other factor ordinarily related to an injured party’s fight to recover damages. The sole basis for differentiation, as far as the injured employee is concerned, is á fortuitous circumstance — whether the third party tort-feasor happens to be under the act.
“It is readily apparent that there is no rational difference between an employee injured in the course of his employment by a motorbus, and one injured by a farmer’s truck. Each may sustain the same injuries, and be entitled to the same amount of compensation from their employers; neither had any control over the circumstances of their injuries, or the status of the party who hit them, yet in one case the statute authorizes the employee to recover damages from the third party, and in the other case the employee must be content with the amount of compensation he may be entitled to receive from his employer.”
I do not agree with the conclusion reached in the majority opinion that the appellant’s attack upon the invalidity of this statute is hypothetical and not pertinent to this case, *181 for the reason that the validity of the statute has been attacked and the arguments directed to its invalidity have been presented to this court in this appeal. The court has decided that the classification is not arbitrary, thus ruling upon the question presented without answering the objection raised.
The right to redress for a wrong suffered by a workman is a substantial one. Relegating the workman to the accident fund for payment for an injury received at the hands of a third party tort-feasor will result in the instant case in a denial of compensation for a portion of the injury not com-pensable under the workmen’s compensation act.
The appellant alleges that he has suffered severe burns, and that he will have permanent and lasting disfigurement to his face and to his hands and that plastic surgery alone will cost several thousand .dollars and will not correct his condition. The act provides no compensation for such an injury. 2 Larson, Workmen’s Compensation, 138, § 65.30.
The classification giving to employers immunity from suit is also arbitrary, for it does not effectuate the purpose of the act, which is to place upon the industry the burden of the losses sustained by injured employees. The employer’s protection against suit by the employee is justified by the fact that the employer pays for this protection based upon his own cost experience. The cost experience of the third-party employer is not charged with the loss where the injury is sustained by the workman as a result of the third-party employer’s negligence. Instead, the loss is charged to the employer of the injured workman. Boeing Aircraft Co. v. Department of Labor & Industries, 22 Wn. (2d) 423, 156 P. (2d) 640 . Thus, the immunity of the third-party employer operates to increase the liability of the injured workman’s employer, who is without fault and is ordinarily not in a position to protect the workman from such injuries.
I would reverse the judgment of the trial court.