Richardson v. Carbon Hill Coal Co.

Gordon, J.,

(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…