(dissenting).—I am unable to concur in the disposition made of this case. The opinion of the majority seems to proceed upon the theory that this court, upon consideration of the second appeal, which is reported in 10 Wash. 648 (39 Pac. 95), held the complaint insufficient. The opinion in that case, in so far as it related to the pleadings, merely held that the complaint did not allege that the defendant failed to exercise ordinary care in selecting a surgeon. But the court did not hold that the complaint did not state a cause of action. The theory of the complaint then before the court (and the same is true of the prior complaint) was that defendant was under obligation to furnish surgical treatment, and that the surgeon was the servant of defendant for whose malpractice the defendant was liable. But that it stated a cause of action on that theory has never so far as I can discover been disputed. As I read the decision in 10 Wash. 648, the reversal was not solely because “irrelevant testimony showing the rapid rate of speed at which the engine” was driven was admitted. In regard to the cause of action arising from the negligent surgical treatment, the court said:
*374“It is conceded in this case that no express contract was made between the company and the respondent in' relation to his treatment or care in case he became sick or was injured. And it therefore follows that if the appellant was bound to furnish a surgeon to treat respondent’s injuries it was by virtue of such a contract as the law implies from the acts of the parties, and the surrounding circumstances. . . . What was the contract? Was the respondent to be furnished with hospital accommodations and medical attendance?”
The court then proceeds to analyze the evidence bearing upon that cause of action, and continuing, says:
“ But, suppose the contention of the respondent [plaintiff] to be true that the appellant [defendant] so conducted itself that it caused the respondent to believe that it was furnishing to him surgical treatment, and that it is estopped from denying that such was the fact, does it follow under the facts of this case that it is liable for the malpractice of the physician? We think it does not. This hospital was maintained and the physician provided for the sole purpose of relieving sick and injured employes without expense to them and without any intention on the part of the company of making any profit out of the undertaking. It was therefore a charitable institution and it was supported by the contributions of employes, and carried on in their interests. And if the company did employ the physician, as claimed by respondent, to look after and treat the sick and injured, it is not liable for his negligence, but is responsible only for want of ordinary care in selecting him. . . . And it is not shown that the company was derelict in that particular. In fact it is not even alleged in the complaint that it did not exercise ordinary and reasonable care to select an ordinarily skillful physician. The action was not brought upon that theory, and the’ proof fails to support a finding of negligence on the part of the company."
It seems to me that what was here said constituted the law of the case. It was directed to the merits of the action *375and demonstrated that the evidence was wholly insufficient to establish any liability. There is nothing in the complaint now before the court that was- not fully covered in the former opinion of this court.
This court having upon the merits decided that defendant was not liable for the negligent surgical treatment, the superior court was right in sustaining a demurrer to the complaint which set forth the same material facts as those passed upon on the former appeal. Whelan v. Brickell, (Cal.), 33 Pac. 396; Wells, Res Adjudicata and Stare Decisis, § 613; Leese v. Clark, 20 Cal. 388; Ex parte Sibbald v. U. S., 12 Pet. 491; Wash. Bridge Co. v. Stewart, 3 How. 413; Phelan v. San Francisco, 20 Cal. 40.
In the last case cited, Judge Field in delivering the opinion of the court says:
“ A previous ruling by the appellate court upon a point distinctly made.may be only authority in other cases, to be followed and affirmed, or to be modified or overruled according to its intrinsic merits; but in the case in which it is made it is more than authority, it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves.”
In the view which I take, this court upon the second appeal (10 Wash. 648) decided in reference to the claim for damages resulting from the surgical treatment, first, that the evidence was not sufficient to sustain the cause of action set up (the theory of that cause of action being that the defendant was under a legal obligation to furnish surgical treatment); second, neither was it sufficient to sustain a recovery on the theory that defendant was negligent in failing to exercise ordinary care in selecting a surgeon (the theory of the cause of action stated in the present complaint). And in this connection the court also said that the complaint nowhere charged that the defendant “did not *376exercise ordinary and reasonable care to select an ordinarily skillful physician.”
In the opinion of the majority it is said that the claim that the complaint was not sufficient to sustain a judgment for damages arising from the want of ordinary care in selecting a physician was discussed, and the attention of plaintiff called to it for the first time in the opinion of the court on the second appeal (10 "Wash. 648). And this seems to be advanced as a reason why the plaintiff should-be permitted to prosecute his action in the form in which he is now seeking. But upon the very first appeal in this case (6 "Wash. 52, 32 Pac. 1012), this court said on that subject:
“ If said hospital was maintained as a charitable institution, and was not designed as a source of profit to the company, but was simply provided as a place in which its laborers might stay when sick or disabled for the purpose of being cared for, and the company simply further undertook to provide a physician for treating the men without expense to them, the whole being in the nature of a gratuity on the part of the company, it would only be liable for a failure to exercise due care in selecting a competent physician. Under such an arrangement the company could not be held to have agreed to treat the injured employe through the agency of a physician, but only agreed to procure for him the services of one, and he would not be the servant of the company.”
Here the court very clearly pointed out the distinction between a cause of action based upon the legal obligation of the defendant to furnish surgical treatment, and a cause of action where the negligence consisted in failing to exercise ordinary and reasonable care in selecting a surgeon, and yet the plaintiff was content to rest upon the theory theretofore adopted by him; he proceeded to a new trial upon that theory, and upon the merits of the case as made *377at that trial this court held (10 Wash. 648) that he was not entitled to recover. That, in my opinion, should end the case. The opinion of the majority seems to me to undermine the decision in 10 Wash. 648, without distinctly abandoning the ground on which it rests.
But if I am mistaken as to the scope of the former decision, nevertheless the plaintiff should not be permitted at this late day to shift his ground, and by the introduction of a new allegation in the complaint prolong the litigation indefinitely. To permit him to do so is, it seems to me, to sanction a most dangerous prateice. In my judgment it would he better to adopt a course that would discourage rather than prolong litigation.
I think the order of the superior court should be affirmed.