(dissenting) — We are unable to conclude that the department decision here overruled is erroneous, and for that reason dissent from the judgment directed to be entered.

*36On Rehearing.

The report of the majority department opinion in this case, as well as the dissent thereto, may be found in 78 Wash. 438, 139 Pac. 231. A rehearing was granted and the cause was reargued. A majority of the court are of the opinion that the action must be dismissed. Since the reasons why the action cannot be maintained are sufficiently stated in the dissenting opinion -above referred to, there seems no reason for further elaboration. It is sufficient to say that we concur in the views therein expressed, and for the reasons there given, the judgment will be reversed and the cause remanded with direction to dismiss.

Crow, C. J., Gose, Chadwick, Ellis, and Morris, JJ., concur.