(dissenting). I cannot assent to the opinion of my Brother Hooker. I think the precise question discussed in his opinion was decided in James v. Mining Co., 55 Mich. 335 (21 N. W. 361), and I cannot con-' sent to overrule that decision. Defendant’s plea in that case was the general issue, with notice that it would prove that plaintiff was not the administratrix of the estate of the decedent. In this case it was the general issue merely. There was involved in that case, as in this, the right of *458defendant to show that the plaintiff administratrix, though formally, was not legally, married to decedent; that decedent, at the time of the marriage with plaintiff, had another wife living, from whom he was not divorced. This testimony was objected to by plaintiff on the ground that it was incompetent and immaterial. If, as claimed by my Brother, this testimony had a legitimate bearing upon the-measure of damages, it was neither incompetent nor immaterial. The objection, in other words, was not well taken, under that theory.
When the case was brought to this court for review, if it could have been said that this testimony was offered as. bearing upon the plaintiff’s cause of action, and not as bearing upon the question of her damages, then I agree that this court should have considered it solely from the first point of view; or, if this court could have said that the trial court proceeded upon the theory that its admissibility was to be looked at from the point of view of its. bearing upon the cause of action, solely, and that defendant’s counsel did not suggest another point of view, then in that case the question of its bearing on damages, should not have been considered. But I do not think the recqrd warranted this court in making either of these answers to the claim of defendant that the testimony was admissible as bearing on the question of damages, and I think it clear that it did not attempt to make either of those answers. As I read that case, the court clearly said that the excluded testimony was not admissible as bearing on the cause of action, and I think, too, that it intended to hold that it was not admissble, under the plea of the-general issue, as bearing on the measure of damages.. That is the construction which I give to this language: “It is not competent on this issue to inquire into matters which no one could fairly anticipate, and which would be no bar to the action.” Page 347.
I cannot, therefore, regard the question discussed in this, opinion as unsettled. I think it is authoritatively settled by the decision of James v. Mining Co. I am bound to-*459add that, in my judgment, no injustice will result from following that decision.
Moore, C. J., concurred with Carpenter, J.