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A similar classification was upheld in
(49 Okl. 6431 Citizens' Insurance Co. v. Clay et al., supra, INSURANCE CO. OF NORTH AMERICA where the Kentucky state insurance rate law et al. v. WELCH, State Insurance excepted from its operation purely mutual
Com'r. (No. 7582.) or profit-sharing companies, or co-operative (Supreme Court of Oklahoma. Nov. 9, 1915. companies not operating for profit, and Rehearing Denied Jan. 4, 1916.) church insurance companies. The objection that the section mentioned is class legisla
(Syllabus by the Court.) tion cannot be sustained.'
MANDAMUS 87-INSURANCE AGENTS-DUTY Subdivision C of section 10, which pro
TO ISSUE LICENSES-MANDAMUS.
Under the provisions of chapter 174, Sess. vides a penalty for any insurance company, | Laws 1915, p. 340, the duty of issuing licenses foreign or domestic, requiring any person to insurance agents is imposed upon the state as a condition precedent to his appointment insurance board, and mandamus will not be, as agent or retaining an agency for said com
awarded against the insurance commissioner di.'
recting him to issue such license. pany to refuse or surrender the agency of any
[Ed. Note.-For other cases, see Mandamus, domestic insurance company, is assailed as Cent. Dig. $8 189–194; Dec. Dig. Om 87.] being in contravention of section 2, art. 2, of the Constitution, which provides:
Error from District Court, Oklahoma Coun"All persons have the inherent right to life,
ty ;. Edward Dewes Oldfield, Judge. liberty, the pursuit of happiness, and the enjoy
Mandamus by the Insurance Company of, ment of the gains of their own industry."
North America, a corporation, and others
against A. L. Welch, Insurance CommissionAnd a portion of section 12 is also assail
er of the State of Oklahoma. Judgment for ed as being an infringement of the rights of
defendant, and plaintiffs bring error. Afan insurance agent, granted to him by said
firmed. section of the Constitution. Upon this question it is sufficient to say that plaintiff is Burwell, Crockett & Johnson, of Oklahoma not in position to raise these objections to City, for plaintiffs in error. S. P. Freeling, the sections challenged, and therefore we will Atty. Gen., and J. H. Miley and Smith C. not consider same for this reason. Rea v. Matson, Asst. Attys. Gen., for defendant in State, 29 Okl. 708, 110 Pac. 235; Robertson error. et al. V. Board of Commissioners, 14 Okl. 407, 79 Pac. 97; Stine v. Lewis, Sheriff, et
HARDY, J. This is an action by the plainal., 33 Okl. 616, 127 Pac. 396.
tiff Insurance Company of North America  Complaint is also made of the action and certain of its agents for the purpose of of the insurance board in refusing to ap
compelling A. L. Welch, insurance commisprove the form of policy submitted by plain- sioner of the state of Oklahoma, to issue to tiff because same appears to be a joint pol- such agents licenses authorizing them to repicy issued by it and another company, and resent the plaintiff company and issue polihas indorsed on the filing back thereof incies on its behalf. The petition alleged that large letters the words “PHILADELPHIA the plaintiff had been licensed to do busiUNDERWRITERS' DEPARTMENT” andness in the state of Oklahoma for the immediately following and in connection 1915, and had in all matters and things comtherewith, but in small letters, the words plied with the laws of the state and with “Of Both Companies.” It does not appear the insurance department thereof, and that from the pleadings or evidence that plaintiff certain persons named in its petition and in has used or will use such form of policy an exhibit attached thereto had been appointwithout the approval of the board, and there ed by it as its agents in this state for the fore there is no cause for interference until year 1915, which list of agents had been a case shall be presented where actual re- filed with the insurance department of the lief may be granted. Plaintiff is not entitled state and with the defendant as insurance to the relief demanded, for the additional commissioner: that the necessary fees had reason that, the act conferring authority up-been tendered, setting forth compliance with on the insurance board to act in the prem- all of the provisions of the law in reference ises being valid, and provision being made to the appointment and licensing of agents therein for an appeal to this court, the plain-l on behalf of plaintiff and its agents; that it tiff is not entitled to resort to a court of had requested the defendant, as insurance equity for injunctive relief, but must pursue commissioner, to issue said licenses, which the remedy provided by the statute, which he had refused to do. in this case appears to us to be plain, speedy, Upon filing the petition an alternative writ and adequate. Ellis v. Akers et al., 32 Okl. of mandamus was issued and served upon 96, 121 Pac. 258; Harriset al. v. Smiley, 36 the defendant, who within due time filed his Okl. 89, 128 Pac. 276.
answer and return, justifying himself under For the foregoing reasons, the order of the provisions of House Bill No. 70, contendthe trial court denying the temporary in- / ing that, under said law, the authority and junction is affirmed. All the Justices con- power to issue licenses to agents of insurance cur.
companies was vested in the state insurance
For other cases see same toplo and KEY-NUMBER in all Key-Numbered Digests and Indexes
board, and that defendant had no authority, physician acts in an administrative, and not a under said law to do so.
judicial, capacity, and the same strictness in At the trial it was admitted that defend
ind, pleadings and practice is not required before
it as before a judicial tribunal. It is sufficient ant, Welch, had refused to issue the licenses if the accused is informed by the complaint of to the agents named, and at the close of the the wrong charged against him and the particutrial judgment was rendered for the defend. I lar instances of its perpetration charged, and ant. Motion for new trial fled and overruled, such charges, and the proceedings are free from
| has an opportunity to defend against proof of and exceptions saved, and plaintiffs bring er prejudice, fraud, or oppression. ror. The determination of this case is con- [Ed. Note.-For other cases, see Physicians trolled by the decision in Insurance Co. of and Surgeons, Cent. Dig. $ 15; Dec. Dig. North America et al. V. Welch, Insurance
Om 11.] Commissioner. et al. (No. 7581) 154 Pac 48. 5. PHYSICIANS AND SURGEONS 11-PROthis day decided.
CEEDINGS TO REVOKE LICENSE-EVIDENCE
ADVERTISEMENT. By the provisions of chapter 174, Sess. " An advertisement published by a physician Laws 1915, p. 340, the power and duty to 11. held properly admitted in evidence against him cense insurance agents is conferred upon the upon a charge of obtaining a fee on the assurstate insurance board; and, having deter
ance that an incurable disease can be per
manently cured by him, as tending to prove mined this act to be a valid exercise of legis the assurance of permanent cure, where such lative authority, it follows that the defendant assurance is denied by the physician. as insurance commissioner is without author-| [Ed. Note. For other cases, see Physicians ity to issue the licenses demanded by plain
and Surgeons, Cent. Dig. § 15; Dec. Dig. Om
11.] tiffs, and no duty is imposed upon him to do so, as said licenses should be issued by the
6. APPEAL AND ERROR 1071 – HARMLESS
ERROR-FINDINGS OF FACT-EVIDENCE. state insurance board.
It is error for the court to make a finding The judgment of the trial court refusing of fact upon a matter upon which all evidence the writ of mandamus is therefore affirmed. was excluded, but, where the other findings of
the court are supported by the evidence, and are
sufficient to sustain the judgment of the court, (54 Okl. 531)
such error is not so prejudicial as to warrant a FREEMAN v. STATE BOARD OF MED
reversal. ICAL EXAMINERS. (No. 5854.)
[Ed. Note.-For other cases, see Appeal and (Supreme Court of Oklahoma. Dec. 7, 1915.
Error, Cent. Dig. 88 42344239; Dec. Dig. Om
1071.] Rehearing Denied Jan. 11, 1916.)
7. PHYSICIANS AND SURGEONS Om 11-REVO(Syllabus by the Court.)
CATION OF LICENSE-SUFFICIENCY OF Evi.
DENCE-CERTIORARI. 1. PHYSICIANS AND SURGEONS ~11-REVO Evidence considered, and held to sustain CATION OF LICENSE - PROCEEDINGS — PAR- the judgment of the court. TIES.
[Ed. Note.--For other cases, see Physicians The state is not a necessary party to a land Surgeons, Cent. Dig. § 15; Dec. Dig. Om proceeding before the state board of medical examiners to revoke the license of a physician.
11.) (Ed. Note.-For other cases, see Physicians Commissioners' Opinion, Division No. 1. and Surgeons, Cent. Dig. § 15; Dec. Dig. Om 11.)
8 10; Dec. Dig. Om Error from District Court, Bryan County;
Jesse M. Hatchett, Judge. 2. PHYSICIANS AND SURGEONS Om 10%"UN-| PROFESSIONAL CONDUCT''-"INCURABLE Dis
Certiorari by R. W. Freeman against the EASE."
State Board of Medical Examiners. Writ In the second clause of section 6905, Rev. I quashed, and plaintiff brings error. Affirmed. Laws 1910, defining "unprofessional conduct" | of a physician as ** *** the obtaining of Hatchett & Ferguson, of Durant, for plainany fee on the assurance that an incurable dis- tiff in error. S. P. Freeling. Atty. Gen., and ease can be permanently cured," the words "incurable disease" mean any disease which has
C. W. King, Asst. Atty. Gen., for defendant reached an incurable stage in the patient af in error. flicted therewith, according to the then general state of knowledge of the medical profession. [Ed. Note.-For other cases, see Physicians
RUMMONS, C. The questions involved in and Surgeons, Cent. Dig. § 14; Dec. Dig. Om this appeal raised in the brief of plaintiff in 10.
error necessary to be considered consist of For other definitions, see Words and Phras. | four propositions: First. Is the state a neces, First and Second Series, Unprofessional.]
essary party to this proceeding? Second. 3. PHYSICIANS AND SURGEONS m10_UNPRO- Is the clause in section 6905, Revised Laws FESSIONAL CONDUCT-VALIDITY OF STATUTE. 1010 The second clause of section 6905. Rey.
1910, defining "unprofessional" conduct of a Laws 1910, "is valid, and defines an offense physician as follows: "Second. The obtainagainst professional conduct on the part of ing of any fee on the assurance that an inphysicians.
curable disease can be permanently cured"[Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 14; Dec. Dig. Om
void and of no effect? Third. Whether or not the proceedings before the state board of
medical examiners and the district court 4. PHYSICIANS AND SURGEONS Oum 11 - PROCEEDINGS TO REVOKE LICENSE-COMPLAINT.
were regular and free from prejudicial error? The state board of medical examiners in a Fourth. Was the evidence sufficient to supproceeding before it to revoke the license of a port the judgment of the trial court?
The plaintiff in error, a duly licensed phy-, 20 days after the filing of the complaint, and sician, was informed against before the state to proceed thereafter to try and determine board of medical examiners upon a charge the issues raised. of being guilty of unprofessional conduct. ' Section 6913, Revised Laws 1910, further He was thereafter duly cited to answer the provides: complaint, and did answer the same, deny. “Any person who has been aggrieved by any ing specifically the acts complained of. I act, rule or regulation of said board shall have
his right of action to have such issue tried in Thereafter, at one of its regular quarterly
the district court of the county in which some meetings, the state board heard the com
member of the board shall reside.” plaint, and, after plaintiff in error had un
It will be seen that under no provision of successfully moved to dismiss the complaint,
the statute does the state of Oklahoma or demurred thereto, and moved to strike, pro
any official thereof have exclusive authority ceeded to take testimony upon the complaint.
to institute proceedings for the revocation of The state board found against plaintiff in
the license of a physician, nor is there any error, and ordered that his license as a physi
authority in the statute by which the state of cian be revoked. Thereupon plaintiff in error
Oklahoma can control such proceedings. The filed his petition in the district court of
proceeding may be instituted by any one, and Bryan county praying a writ of certiorari to
the state of Oklahoma or the Attorney Genissue to the state board of medical examiners
eral would be wholly without authority to to review their action upon the complaint aforesaid. The writ was issued, and there
dismiss such proceeding or cause it to be after the cause came on before the district
discontinued. Therefore we are of the opin
ion that, while the state of Oklahoma, court of Bryan county, and a trial was had
through its Attorney General, might approto the court, without the intervention of a
priately institute such a proceeding, yet it jury, upon the complaint filed with the state board of medical examiners and the answer
is not such a necessary party to the proceedof plaintiff in error thereto. The trial court
ings as to require it to be in court before the found against plaintiff in error, and quashed
matter could be proceeded with.
[2, 3] Is the provision of section 6905, Rethe writ of certiorari and affirmed the action of the state board of medical examiners.
vised Laws 1910, above quoted void and of (1) Plaintiff in error insists that this pro
no effect? Upon this proposition counsel for ceeding should have been dismissed for the
| plaintiff in error cite the case of Graeb v.
State Board of Medical Examiners, 55 Colo. reason that the state of Oklahoma is a nec
523, 139 Pac. 1099, 47 L. R. A. (N. S.) 1063. essary party to a proceeding like this. We
The Colorado statute provides as a ground cannot agree with this contention of plaintiff in error. The case of Gulley v. Terri
for revoking the license of a physician
“* . * The obtaining of a fee on the reptory of Oklahoma, 19 Okl. 187, 91 Pac. 1037, 1.
resentation that a manifestly incurable disdoes not sustain the contention of the plaintiff in error, because that case was begun and
ease can be permanently cured.” Section tried under the laws then in force in the terri
"6068, Rev. St. 1908. Our own statute makes tory of Oklahoma providing that the district
the ground for the revocation of license
“* * . the obtaining of any fee on the court shall upon the complaint of any member of the territorial board of health have power
assurance that an incurable disease can be to cancel the license of any physician found
permanently cured.” The two statutes are
identical, except for the word “manifestly" guilty, etc. Under this statute the proceedings to revoke the license of a physician were
used in the Colorado statute. A majority
of the Colorado Supreme Court in the case judicial, had to be commenced upon the com
cited held that the statute quoted was too plaint of a member of the territorial board of health, and were thus officially controlled,
indefinite and uncertain to be valid. The and the court rightfully held the state to be
court, in passing upon this question, uses a proper party in such a proceeding. The
the following language:
| “The position of the board is very clearly statcase of State v. Estes, 34 Or. 196, 51 Pac. I.
ed in this respect in their brief in Hamilton v. 77, 52 Pac, 571, 55 Pac. '25, cited by plaintiff Board (Colo.) 148 Pac. 1145, to which brief we in error, also fails to sustain the contention are referred and asked to consider in connection of plaintiff in error. In that case it was
with this case. This is as follows: 'If the
question were in controversy in this case as to held that the state was a proper party in a
whether the words "manifestly incurable disproceeding to revoke the license of a physi. | ease" is so indefinite as to be unenforceable, cian, and that, notice of appeal having been we would welcome the issue, but we hesitate to served upon the state, it need not be served
burden this court with a vast number of author
ities on a point not in issue. Suffice it to say upon the State Board.
that the words last quoted do not refer to any Our statutes (sections 6901, 6903 and 6904, diseases per se, but to a condition of the patient Revised Laws 1910) provide the procedure
suffering from almost any disease. It is true for revoking the license of a physician. The
that consumption is not "a manifestly incurable
disease" in itself, but an invalid suffering from proceeding to revoke the license may be com consumption may have reached a stage in which menced by any one upon a sworn complaint; | the disease is "manifestly incurable." Under and thereupon it is the duty of the state
our statute, a physician might lawfully take
money for representing that he could cure one board of medical examiners to issue citation
case of consumption and at the same time be to the party complained of to answer within committing an offense for taking money under a
similar representation as to another case of the charged with having undertaken to treat upsame disease which had manifestly gone beyond on assurance of effecting a permanent cure the curable stage. This argument is also advanced in this case, but not so clearly stated as
were not considered by the witnesses for in the above quotation. This position is not the complainant to be incurable per se; in tenable. If the statute had intended a manifest fact; it may be doubted if the medical proly incurable person, or a manifestly incurable per
fession recognizes any disease as incurable diseased condition, it would doubtless have so recited. But the language is a 'manifestly in- per se—that is, beyond the reach of medicurable disease.' Clearly the descriptive words cal skill at any stage in the progress of the *manifestly' and 'incurable' apply to the disease, disease. We think, however, that the majoriand not to the person or the condition of the person afflicted with the disease. This is like-ty opinion of the Colorado court does not wise the charge in the complaint; for it al-rightly construe the statute, and we prefer leges that a manifestly incurable disease could to follow the dissenting opinion in that case, be cured * * * the disease known as con- |
as we think the dissenting opinion correctly sumption.' Counsel for the board have cited no authority justifying such construction of the interprets the statute in question, and that language used in the statute as that for which such interpretation is equally applicable to they contend, and we do not see how language so lour own statute. clear and explicit can be so tortured. If there
To sustain the contention of the plaintiff is no disease known and understood to be mani. festly incurable, then the statute states no of. in error upon this proposition would be to fense in that particular, and the board was with- nullify that section of our statute, and to out jurisdiction in the premises.”
hold that the Legislature, adopting it, did Mr. Justice Gabbert, writing the dissenting a vain and useless thing. The universal rule opinion for the minority of the court, uses of statutory construction is that, when the the following language:
intent of the Legislature can be determined “When is a disease manifestly incurable? from the statute, it is the duty of the courts Clearly when it is evident it has reached the to follow and enforce such intent. In constage that it cannot be made to yield to medical string
ad struing statutes consideration is always given treatment. That is what laymen, as well as the medical profession, understand from the ex- to the mischief to be corrected and the remepression 'a manifestly incurable disease. The dy to be afforded. As we regard this section intent of the law is to be considered in its in
s to be considered in its in- of our statute, we think that it is not aimed terpretation, and, in ascertaining such intent, the evil against which it is directed must be con
| at any unethical practices of physicians as sidered. It is common knowledge that one suf interpreted by the medical fraternity, but fering from disease can easily and readily be was aimed to prevent acts on the part of imposed upon by those who, by reason of the
physicians which are universally regarded fact that they have obtained a license to practice medicine, are presumed to possess that degree of
as immoral and against good conscience, not skill in the treatment of disease which will en- only by the medical profession, but by layable them to accomplish that which they rep- men as well, and for which under the style resent they can. The object of the statute is to prevent what would be nothing less than ex
of obtaining money under false pretenses our tortion by members of the medical profession, Criminal Code has provided the penalties of obtaining money from persons or the relatives the law. The gist of the offense of which it and friends of those suffering from disease by lis claimed plaintiff in error was guilty is promising a cure when it is apparent that the patient is beyond the reach of medical science.
duping the credulous and taking advantage Such being the object of the statute, the words of the afflicted by taking money from them employed to express it should not be given such with an assurance that they can be permaa narrow construction as will result in destroy
nently cured when, in fact, their condition is ing its beneficent purpose, when from such lan- 1. guage, and the general understanding of what incurable according to the general state of it means, it is apparent that the Legislature in- knowledge of the medical profession at that tended to prevent the helpless ill being imposed time. The word "incurable" is defined: upon by the promises of a cure when it was evident their condition was such that it could not
“Not curable; beyond the power or skill of
medicine.” 22 Cyc. 74. be accomplished."
“Not susceptible of
cure; applied to both patients and disease." This case is the only one cited by counsel, Dunglison's Medical Dictionary. and the only one which we have been able to Section 2914, Revised Laws 1910, profind, which passes directly upon the point vides: raised by plaintiff in error. The majority “Words used in any statute are to be underopinion undoubtedly sustains the contention stood in their ordinary sense, except when a of plaintiff in error. While the Colorado contrary intention plainly appears.” statute uses the words "manifestly incurable" Section 4642, Revised Laws 1910, provides: instead of the word “incurable" as in our “* . But the rule of the common law, statute, we do not regard this as affecting the that statutes in derogation thereof, shall be
| strictly construed, shall not be applicable to any applicability of the majority opinion of the * * * statute of Oklahoma; but all such stat. Colorado court, since the court there holds utes shall be liberally construed to promote their that the words “manifestly" and "incurable" object.” must be taken as applicable to the disease. Under these definitions and under the rules per se, and not to the condition of the patient of construction laid down as above in our suffering with the disease at the time his statutes we must conclude that the word “iptreatment is undertaken by the physician. curable," in the section of the statute in quesThe record in the case at bar discloses that tion, is to be interpreted in its ordinary ac
ing that section, did not intend to do a use- , sufficient, since it advises him of the particuless thing, but intended the statute to be en- lar diseases the treatment of which he is forced in accordance with an interpretation charged with having undertaken, especially based upon the ordinary understanding of the as plaintiff in error did not seek to have words used, both by laymen and physicians. these charges made more definite and certain. In that view of the case we are clearly of  The plaintiff in error complaing of the the opinion that the words "incurable dis-admission in evidence by the trial court of an ease" in the section of the statute in question advertisement which is admitted to have been apply to the state of the disease which a published by plaintiff in error. Plaintiff in patient may have at the time the treatment error says that he was not charged with makof it is undertaken by the physician, and ing grossly improbable statements, calculated that, if a physician undertakes to treat a to mislead the public, in advertising his busipatient who is suffering from a disease which ness. While this is true, we do not think the has in its progress reached an incurable state court erred in the admission of this advertiseaccording to the then general state of knowl- ment, since it tended in some degree to throw edge of the medical profession, and accepts light upon a question properly before the a fee from the patient upon the assurance court; i, e., whether or not plaintiff in error that he can effect a permanent cure of such gave assurances of effecting permanent cures disease, he would be guilty of unprofession of incurable diseases. al conduct as defined in that section of our  Plaintiff further complains that the statute.
trial court in its findings in this cause found 541 Plaintiff in error complains of irregu- plaintiff in error guilty of a charge upon larity and error in the proceedings before the which the trial court, upon the objection of state board of medical examiners and in the plaintiff in error, had excluded all evidence. trial before the district court. He particu- The record seems to bear out the contention larly complains of the sufficiency of the com- of plaintiff in error in this particular. While plaint filed before the state board. It is this is error, yet, as we have concluded that practically held unanimously by all the courts the judgment of the trial court was right, the that such boards, in proceedings similar to fact that he may have included in his findings the one at bar, do not act judicially, and are
+ har do not act iudicially, and are a conclusion which was not supported by the not judicial bodies, but that their action is evidence, since he did make findings that are merely administrative. It is also held that supported by the evidence and which sustain it is within the police power of the state to the judgment, we will not disturb the judg
* powers such as are sought to be exer- ment of the court therefor. cised in this case to such boards as a part of  Plaintiff in error further contends that the administrative arm of the government, the findings of the court are not supported and to provide for summary proceedings to by sufficient evidence. We have examined be taken by such boards in cases similar to the record upon the propositions complained the one at bar. It is also held that it is not of by plaintiff in error, and we find sufficient necessary in a trial under such a complaint evidence to sustain the findings of the court that the proceedings shall be conducted with as to the incurable nature of the diseases unthat degree of exactness which is required dertaken to be treated by plaintiff in error, as in trials before ordinary tribunals of justice, to his assurances of effecting a permanent and that a complaint filed before a state cure, and as to his accepting a fee therefor. board of health for the purpose of revoking It is urged by plaintiff in error that the writthe license of a physician is sufficient if it ten guaranty which was introduced in eviinforms the accused not only of the nature dence, and which is as follows: of the wrong charged, but of the particu
"Absolute Guarantee. lar instances of its alleged perpetration.
“_ , Okl., - 191. Munk v. Frink, 81 Neb, 631, 116 N. W. 525,
"I, R. W. Freeman, M. D., party of the first 17 L. R. A. (N. S.) 439; Meffert v. Packer, 66 part, do hereby agree to refund all moneys paid Kan. 710, 72 Pac, 247, 1 L. R. A. (N. S.) 811, to me by H. S. Hawkins, party of the second affirmed, 195 U, S. 625, 25 Sup. Ct. 790, 49 L.
part, should he fail to receive a complete cure by
my treatment. Ed. 350; State Medical Board v. McCrary,
R. W. Freeman.
“I, H. S. Hawkins, party of the second part, 95 Ark. 511, 130 S. W. 544, 30 L. R. A. (N. S.) do hereby agree to follow the directions given 783. Ann. Cas. 1912A, 631; State Board of by R. W. Freeman, M. D., party of the first Health v. Rov. 22 R. I. 538. 48 Atl. S02: State part, through a period of time sufficient as
deemed by him to effect a complete cure. Should v. Chapman, 34 Minn, 387, 26 N. W. 123; I fail to follow the directions as given by him, State v. Feller, 34 Minn, 391, 26 N. W. 125. then I agree that this agreement becomes null In view of the fact that the controversy is and void.
H. S. Hawkins.” narrowed down to the one charge that plain- -is not a guaranty of a cure, but only a tiff in error accepted a fee for the treatment guaranty to refund the fee in the event the of an incurable disease with the assurance treatment prove unsuccessful. We consider tliat he could effect a permanent cure, we are this contract to be a mere subterfuge, and of the opinion that the paragraph of the com- have no doubt that it was drawn for the very plairt which charges plaintiff in error with purpose of protecting plaintiff in error in a that offense against professional conduct is case like this. But a reading of the entire