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Ky.)

ARCHER V. BOWLING

15

ceedings are sufficient to render the judg-, action, so as to defeat a recovery by them, so ment void. At most the matters referred to that they were entitled to join as parties plainare errors, and the remedy was by appeal tiff in a suit brought by her alone. or steps to vacate the judgment. Until the Dig. Om44.]

[Ed. Note.-For other cases, see Death, Dec. judgment be reversed on appeal, or modified 2. DEATH 31-CIVIL ACTION FOR DAMAGES or vacated by direct proceedings, it is bind- --REMARRIAGE OF WIDOW. ing on all the parties thereto. As said in The fact that the widow had remarried Dawson v. Litsey, 10 Bush, 412, in consider during the pendency of the suit did not affect ing a collateral attack upon a judgment ren- dren.

her right to recover or that of the minor childered in proceedings where the parties and [Ed. Note.

For other cases, see Death, Cent. the subject-matter were within the jurisdic- Dig. $$ 35, 37-46, 48; Dec. Dig. On 31.] tion of the court :

3. DEATH On91-CIVIL ACTION-DAMAGES. “Such errors are voidable only, and can be In an action under Ky. St. § 4, for damagcorrected alone by some direct proceeding fur- es for the death of her husband from the malinishing grounds for vacating the judgment, as cious use of firearms, etc., the plaintiff's marprovided by the Code, or by an appeal; and riage pending the suit did not diminish the it is only in cases where there is an entire want amount of damages that might have been reof jurisdiction that such judgments can be col- covered by her if she had remained unmarried, laterally questioned."

or affect the amount that she and her children, See Dorsey v. Kendall, 8 Bush, 299; Rev-as joint plaintiffs, might recover. ill's Heirs v. Claxon's Heirs, 12 Bush, 563; Dig. SS 99-101; Dec. Dig. 91.]

[Ed. Note. For other cases, see Death, Cent. Ogden v. Stevens, 98 Ky. 566, 33 S. W. 932, 4, DEATH Cm 95-CIVIL ACTION-MEASURE OF 17 Ky. Law Rep. 1115; Oliver v. Park, 101 DAMAGES. Ky. 1, 39 S. W. 423, 19 Ky. Law Rep. 179.

Under Ky. St. $ 6, relating to damages re[3] Neither does the fact that the guardian covered in a civil action for the death of a per

son killed by the malicious use of firearms, etc., was the purchaser void the sale. At most the measure of damages was such a sum as it was voidable at the option of the infants. would reasonably compensate the widow and When it appears that the sale was reported, children of the deceased for the loss of his and the bonds executed and approved, and earning power, together with such punitive dam

ages as the jury might award; the widow takthe sale confirmed by the court, it stands as ing one half and the children the other half. a valid sale until it is set aside or vacated [Ed. Note. For other cases, see Death, Cent. after steps taken in the manner already re- Dig. $$ 108, 109, 111-115, 120; Dec. Dig. Om ferred to, and even then the title of Hopkins

95.] and his vendees would not be affected, unless 5. LIMITATION OF ACTIONS Cw124-PARTIES

INTERVENTION. it be made to appear that they were not bona Where a widow's action for damages for fide purchasers. Civ. Code, s 391. As said the wrongful death of her husband, brought unin Clements v. Ramsey, 4 S. W. 313, 9 Ky. der Ky: St. $ 4, had been begun within a year Law Rep. 174:

from his death, an application of his infant

children to come into the case as parties plain"The purchase was made by the guardian in tiff was not barred by the one-year statute of his own right. Having been made by the guard- limitations, though not made until after that ian, the chancellor could have refused to contime. firm the sale. He saw proper to confirm it, and

[Ed. Note.-For other cases, see Limitation of directed a deed made to him by the commis Actions, Cent. Dig. & 541; Dec. Dig. Om 124.] sioner. That deed invested him with title, and where he sold to a third party, the latter held it against the infant and all others claiming

Appeal from Circuit Court, Whitley County. under him. The sale was not void.”

Action by Mrs. Lewis Archer and others See Morrison v. Garrett, 22 S. W. 320, 15 against Thomas Bowling and others. JudgKy. Law Rep. 305; Faucett v. Faucett, i ment for defendants, and plaintiffs appeal. Bush, 511, 89 Am. Dec. 639.

Reversed, with directions. It appearing that neither the judgment nor H. B. Brown, of Jellico, Tenn., and R. L. sale were void, and that no steps were taken Pope and P. W. Hardin, both of Williamsto reverse, vacate, or modify them, we con- burg, for appellants. H. L. Bryant, R. S. clude that the lower court properly adjudged Rose, and Stephens & Steely, all of Williamsthat the appellees were the owners of the burg, for appellees. land, and the judgment is therefore affirmed.

CARROLL, J. On August 20, 1911, Lewis Archer was killed by Thomas Bowling. He

left surviving him a widow and five infant ARCHER et al. v. BOWLING et al.

children, and within the year his widow (Court of Appeals of Kentucky. Oct. 12, 1915.) | alone brought suit against Bowling and oth1. DEATH Cm 44-CIVIL ACTION-PARTIES-ers implicated in the killing to recover damSTATUTE.

ages for the death of her husband, under Under Ky. St. $ 4, providing that the wid-section 4 of the Kentucky Statutes. This ow and minor children, or either, or both, of a person killed by the careless or malicious use section reads: of firearms, etc., may have an action against “The widow and minor child, or either or both the one committing the homicide, and may re- of them, of a person killed by the careless, wancover punitive damages, a suit by the widow ton or malicious use of firearms, or by any alone was for the benefit of herself and her weapon popularly known as colts, brass knucks, minor children, and she could not control the l or slung-shots, or other deadly weapon, or sandbag or any imitation or substitute therefor, not dismiss it in so far as she is concerned, but the in self-defense, may have an action against the dismissal as to her will not be permitted to person who committed the killing, and all oth-interfere with its prosecution by the child or ers aiding or promoting, or any one or more of children if they are parties to it; nor will it them; and in such actions the jury may give bar an action instituted by them within the vindictive damages."

proper time. The statute was designed to benIn a trial of this suit there was a verdict covery, if any, being for their joint benefit.”

efit the children as well as the widow; the rein favor of the widow, but on the appeal of the defendants the judgment was reversed

Adopting this construction of the statute, for reasons stated in the opinion in Bowlin we are of the opinion that the court erred v. Archer, 157 Ky. 540, 163 S. W. 477. The in refusing to permit the infant children to mandate from this court was filed in the join as parties plaintiff in the suit with lower court in February, 1914, and in May, their mother. The suit, although brought by 1914, the infant children of Lewis Archer of her alone, was for the benefit of herself and fered a pleading asking to be made parties her infant children. All of them were sevplaintiff in the suit. In this pleading they erally and jointly interested in the recovery adopted the allegations of the petition and and entitled to the benefit thereof. amended petition filed by their mother, and

[2, 3] The fact that the widow married stated that since the first trial of the case, during the pendency of the suit, did not afand pending the appeal, their mother had fect her right of recovery or that of the married, and they set up that they were

children. The case should be heard and proper parties plaintiff in the action, and disposed of without reference to her marshould be permitted to prosecute it in their riage, as the fact of her marriage did not own behalf and for their own benefit, and have the effect of diminishing the amount they prayed to be made parties plaintiff and that might have been recovered by her if to be permitted to prosecute the action with she had remained unmarried, or affect the her against the defendant.

amount that she and her children, as joint [1] The trial court refused to permit this plaintiffs, might be entitled to recover. pleading to be filed, or to permit these in Georgia R. R. Co. v. Garr, 57 Ga. 277, 24 fant children to be made parties plaintiff, Am. Rep. 492; Davis v. Guarnieri, 45 Ohio and further adjudged that the widow was

St. 470, 15 N. E. 350, 4 Am. St. Rep. 548. only entitled to damages "for whatever loss

[4] In actions like this the distribution she sustained, if any, from the death of her of the recovery is fixed by section 6 of the first husband up until the date of her mar- statute, providing in part: riage with James Archer.” From the judg- from an injury inflicted by negligence or wrong.

"Whenever the death of a person shall result ment refusing to permit their pleading to ful act, then in every such case, damages may be filed, and also from the judgment holding be recovered for such death from the person or that the widow could only recover damages persons, company or companies, corporation or from the date of the death of her first hus- corporations, their agents or servants, causing

the same. * * * The amount recovered, less band until her second marriage, this appeal funeral expenses and the cost of administrais prosecuted.

tion, and such costs about the recovery, includMartin v. Smith, 110 S. W. 413, 33 Ky. ing attorney fees as are not included in the Law Rep. 582, was a case in which a suit benefit of and go to the kindred of the de

recovery from the defendant, shall be for the under section 4 of the Statutes had been ceased in the following order: brought by the widow alone, and it appears deceased leaves either a widow and children or from the opinion that the widow, after a husband and children, then one-half to such

widow or husband and the other one-half to bringing the suit, moved the court to dis- the children of the deceased." miss it. Pending this motion, the infant children of the widow and her deceased hus

So that under this statute, in a case such band came into court and asked that they be as we have, the widow would be entitled to made parties plaintiff and be permitted to one-half of the amount recovered and the prosecute the action in the name of their children to the other one-half; and the measnext friend. The court overruled the mo

ure of damages is such a sum as will reation of the infant children to prosecute the sonably compensate the widow and children action in the name of their next friend, and, for the loss they sustained in the destrucgranting the request of the widow, dismissed tion of the power of the deceased to earn the action brought by her. From this rul-money, and, in addition thereto, the jury ing the infant children appealed. In the may, as provided in the Statutes, give vincourse of the opinion the court said:

dictive damages. “Under the statute, * * * the action may

[5] The question is raised by counsel for be brought by the widow and minor child, or appellees that the right of the infant chilchildren, jointly, or by the widow alone, or by dren to come into the case was barred by the minor child' or children alone, or, if there the one-year statute of limitation. This asbe neither widow, child, or children, by the per: sertion, however, is not well founded. The sonal representative of the intestate. * If the action be brought by the widow alone. action by the widow was brought within a the minor child or children, appearing by their year after the death of her husband, and the guardian or next friend, have the right to be made parties plaintiff. The widow cannot con- pleadings of the infant children asking that trol the action so as to defeat a recovery by the they be made parties plaintiff to the action Ky.)

ELAM V. HICKMAN

17

by her. The only purpose of the tendered whether, as between Elam and Hickman, the pleading was to make new parties plaintiff Hickman corner is the one named in his to the action, and the court erred in not deed from Maurer, viz., 155 feet east of the permitting the pleading to be filed.

Twelfth street corner, or whether a portion Wherefore the judgment is reversed, with of the 18-inch block surplusage shall be apdirections to proceed in conformity with portioned between these two lot owners, and this opinion.

the corner in question be shifted further east, on Elam, in order that Hickman may

share in it. ELAM et al. v. HICKMAN et al.

In effect, the judgment of the lower court (Court of Appeals of Kentucky. Oct. 12, 1915.) was to establish the corner and boundary BOUNDARIES 55 - EXCESS LAND-APPOR- between Hickman and Elam as set forth in TIONMENT. The owner of two lots in a block of land

the deeds from Maurer, their common venin which there was a surplus of 18 inches con

dor. We are of the opinion that this judg. veyed the property separately by deeds which ment was proper. specified with accuracy the number of feet conveyed. In an action between the grantees it

The boundaries in the Maurer deeds are was insisted that the corner of one of them as minutely set forth, and it is admitted that fixed by the deed should be shifted in order that Elam and Hickman took the land so conveyhe might share in the surplus. Held that, as it ed, dimensions and all. There is no allegadid not appear that the owner intended to con- tion that Maurer owned or intended to convey his share of the surplus, and as there was no proceeding by all the owners in the block to vey any more than he did convey, or that apportion it, the parties were bound by the de- by oversight or otherwise he failed in anyscriptions in their deeds.

thing. This is not an action between all the [Ed. Note.-For other cases, see Boundaries, owners to apportion the surplusage in the Cent. Dig. $$ 278, 279; Dec. Dig. 55.]

block, as neither they nor Maurer nor the Appeal from Circuit Court, Boyd County. original vendor have been made parties. If

Action between Mathew Elam and others the original vendor has ever been divested and A. H. Hickman and others. From a of title to the alleged surplus, and it had judgment for the latter, the former appeal. been made to appear that the surplus actualAffirmed.

ly belonged to the lot owners in common, it 0. M. Elam and John W. Woods, both of would not be proper in this action to arbiAshland, for appellants. John T. Diederich trarily shift any corners of the lots in quesand J. B. Wilhoit, both of Ashland, for tion in either direction, in disregard of the appellees.

rights or equities of the other lot owners.

In Smith & Preston v. Prewit, 2 A. K. NUNN, J. This is a controversy over a

Marshall, 155, where certain land was surboundary line between the city lots of Elam side boundary, and granting 2,000 acres each boundary line between the city lots of Elam veyed and patented with reference to one outand Hickman. These lots make up part of a block in Ashland, between Twelfth street to two patentees, but it subsequently developon the west and Thirteenth street on the ed that the boundary covered by these two east, and Central avenue to the south, and patents was largely in excess of 4,000 Railroad alley to the north. The block, as acres, the court adjudged the surplus to be

This rule laid out by the Kentucky Iron & Coal Manu- divided equally between them. facturing Company in the year 1854, con- was followed in Respass v. Parmers' Heirs, tains six lots, each fronting 50 feet on Cen- 5 J. J. Marshall, 648. tral avenue. Deeds were made by that com

But the situation here is more like that pany to its vendees for all the lots having in the case of Vance v. Gray, 142 Ky. 267, the dimensions named. It appears, however, 134 S. W. 181, where the court said: that there is a surplus of 18 inches in the "If we were back at the parting of the ways, block between Twelfth and Thirteenth

and the original grantors were before us, and

the conditions had not been changed, the case streets.

might possibly be worked out along the lines The division line in controversy relates to mapped out in the case of Smith & Preston v. lots 55 and 56. These two lots are in the Prewit, supra. But here, after the lapse of middle of the block. The parties got their changed, 'the property passed into other hands,

The parties got their 40 years, during which time conditions have title from a common vendor, John H. Maur- and improvements been made thereon, it will er. The Elam deed was made October 3, readily be seen that upon no just or equitable 1903, and transferred title to lot No. 56, principle could the rule adopted in those cases

be applied," having 50 foot front, and also to the adjacent 5 feet of lot No. 55. Three days later See, also, 5 Cyc. 973. Maurer conveyed to Hickman the remaining But Elam insists that the "record shows 45 feet of lot No. 55. The deed specified the that the surplusage belonging to the two beginning corner as in the line of Central Maurer lots is there now unoccupied by anyavenue, and 155 feet east of the corner of body but Hickman.” We do not understand Twelfth and Central avenue. Maurer inher- that the record shows any surplus as belongited the two lots from his father, who had ing to the two Maurer lots, or that there has owned them since 1873. The question here is ever been an apportionment of it. It is true

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

that the testimony of the city engineer shows O'Rear & Williams, of Frankfort, Allie W. that in a number of other blocks laid out Young, of Morehead, and Fogg & Kirk and by the Kentucky Iron & Coal Manufacturing H. S. Howes, all of Paintsville, for appellant. Company there was a surplus in varying J. F. Bailey, of Paintsville, for appellee. amounts, and that this city engineer and his predecessors in office set stakes in this and other blocks at the corner of several lots, and coal mine motor train. The only other mem

NUNN, J. Appellee was a brakeman on a in so setting stakes the block surplusage was ber of the crew was a motorman. While taken into consideration. It appears that

making an outbound trip the motor collided the purpose of this work of the engineers with an empty coal car which it had left on was for fixing cost of street improvements. the main track when making the inbound But there is no proof that Hickman or any trip. Appellee was lying flat on the motor, owners in this block assented to such appor- rather behind the motorman, and was paintionment or did anything that could operate fully injured in the collision. He sued to reas an estoppel. We are of opinion that the judgment of cover on account of the gross negligence of

the motorman in operating and driving the the lower court should be affirmed; and it is

car, and on the trial the jury returned a verso ordered.

dict for $370. Appellee's back and leg were

bruised, but no bones were broken, He CONSOLIDATED COAL CO. v. BAL- claims that he still suffers pain and inconDRIDGE.

venience when his work requires hard use (Court of Appeals of Kentucky. Oct. 14, 1915.) of his leg. 1. MASTER AND SERVANT 199-INJURIES TO

[1] Appellant asks for a reversal because, SERVANT—"FELLOW SERVANT.

as it says, the brakeman and motorman were A brakeman on a coal mine motor train, fellow servants, and therefore the court errwho, while making up the trip, gave directions to the motorman to go ahead' or to back up, ed in refusing to give an instruction on that but who, when the trip was ready, would get proposition. From the evidence we underaboard cither on a car or the motor, while the stand that in making up the trips or trains it motorman would take the trip to destination, was the duty of the brakeman to couple or the latter at all times having sole control of the trip, and in that regard being superior in uncouple the cars and give to the motorman authority to the brakeman, was not a fellow proper signals to "go ahead” or “back up." servant of the motorman.

When the trip was ready the brakeman [Ed. Note. For other cases, see Master and would get aboard, either on the car or the Servant, Cent. Dig. $ 491; Dec. Dig. Om 199.

For other definitions, see Words and Phrases, motor, as he might feel the situation requirFirst and Second Series, Fellow Servant.]

ed, and the motorman would then take the 2. MASTER AND SERVANT Om189—INJURIES TO train to destination. It is true, while mak

SERVANT-NEGLIGENCE OF SUPERIOR SERV- ing up the trip, the motorman responded to ANT.

the brakeman's signals, but from the evidence a master for an injury to a servant not taas it is clear that at all other times the motoring death, resulting from the ordinary negli- man had sole charge and control of the train, gence of a servant superior to, and having im- and in that regard was superior in authority mediate control of, or supervision over, the to the brakeman. Although these employés injured servant.

[Ed. Note.-For other cases, see Master and were, in the manner described, associated Servant, Cent. Dig. $8 427-435, 437–448; Dec. together in the same work, yet from the eviDig. Om 189.]

dence they were not in the same grade of em3. APPEAL AND ERROR Om 1066 - HARMLESS ployment.

HARMLESS ployment. The relative duties of these emERROR-INSTRUCTIONS.

ployés was not unlike that of the ordinary Under Civ. Code Prac. $S 134, 338, 756, railroad engineer and brakeman, and it has providing that the court must disregard trivial errors, not prejudicing the substantial rights of been often held that an engineer and brakethe party excepting, where, in an action by a man are not fellow servants, although embrakeman on a mining car trip for injuries ployed on the same train. Howard v. C. & caused by the negligence of the motorman, who O. R. R. Co., 90 S. W. 950, 28 Ky. Law Rep. had immediate control of or supervision over the brakeman, the court erroneously authorized 891; L. & N. R. R. Co. v. Moore, 83 Ky. 684. the jury to find for the plaintiff if the injury

[2] Appellant insists that the court erred resulted from the "negligence" of the motorman, in giving instructions to the jury which alin violation of the rule that only gross negligence of a superior servant can subject the mas- lowed the appellee to recover for the mere ter to liability, but the evidence was such that negligence of a superior servant engaged in if there was negligence at all it must have been the same work. The rule in Kentucky is that gross negligence, verdict for plaintiff could stand, since the error was not prejudicial to no recovery may be had from a master for an the substantial rights of the defendant.

injury to the servant, not causing death, [Ed. Note. For other cases, see Appeal and resulting from the ordinary negligence of a Error, Cent. Dig. § 4220; Dec. Dig. Om 1066.] servant superior to and having immediate

Appeal from Circuit Court, Johnson County. control of or supervision over the servant.

Action by Arlen Baldridge against the Con- L. & N. R. R. Co. v. Brown, 127 Ky. 732, 106 solidated Coal

Coal Company. Judgment for S. W. 795, 32 Ky. Law Rep. 552, 13 L. R. A. plaintiff, and defendant appeals. Affirmed. (N. S.) 1135; I. C. R. R. Co. v. Coleman, 59

Ky.)

WEBER V. KNEPFLE

19

S. W. 13, 22 Ky. Law Rep. 878; I. C. R. R. appear as the error itself. Civil Code, 88 Co. v. Mayes, 142 Ky. 382, 134 S. W. 436. 134, 338, 756.

[3] The court by the first and second in Although there was technical error in the structions defined ordinary and gross negli- instructions, it is manifest that the jury tried gence. Then by the third instruction author- the case upon the real issue. Their finding ized a finding for plaintiff if they believed against appellant established the fact of gross the injury resulted from the “negligence" of negligence, for all the proof was addressed the motorman. By another instruction they to the question as to whether the motorman were authorized to find punitive damages wantonly and recklessly ran the motor into for the plaintiff if they believed the motor- the empty car. In view of this state of the man was guilty of "gross negligence" as de- record, we do not believe that the error was fined by instruction No. 2. The instruction prejudicial, and therefore feel we would not authorizing recovery for mere negligence was be justified in remanding the case for another error, for the plaintiff was not entitled to re-trial. cover at all unless there was gross negligence The judgment is therefore affirmed. on the part of the motorman. But the moderate verdict persuades us to believe that the appellant was not prejudiced thereby. The

WEBER V. KNEPFLE. jury found that the motorman was negligent. If there was negligence at all, it was gross

(Court of Appeals of Kentucky. Oct. 15,

1915.) negligence, and, under the facts in the case, MUNICIPAL CORPORATIONS Cww.289 – BETTERthe jury could not have reached one conclu

MENT ASSESSMENT-VALIDITY-STATUTE. sion without arriving at the other. This Ky. St. 8 3565, provides that the cost of motor on its inbound trip left the empty car reconstructing public ways and of making footat a switch on the main track for Hardin way crossings shall be borne exclusively by cit

ies of the fourth class. Section 3566 provides Dale, a miner, to shift it into his room. The that the cost of making sidewalks, including motor went about 100 feet further in order to curbing and guttering, whether by original concomplete the trip and then started back. struction or reconstruction, shall be apportionThere is no dispute that the motor could An ordinance of the city of the fourth class di

ed to abutting property owners in such city. have been stopped in 15 feet. Hardin Dale, rected a reconstruction of the carriageway of who was attempting to switch the empty into the street, not providing for the construction of his room, had a light on his cap, and could a sidewalk, but for curbing and guttering, and

further providing that the reconstruction of the see the on-coming motor plainly, as the track carriageway should be done at the city's cost, was straight. He called to the motorman but that the cost of curbing, and guttering and told him not to bring the motor down should be assessed against abutting owners. until he could switch the car; and when the In suit to enforce assessment warrants against

a property owner, defendant contended that, motor got within 20 or 30 feet of the empty, since there was no provision in the ordinance Dale heard the motorman say, “I will learn for the construction of sidewalks, the reconhim to get the car in the clear.” The ap-struction of the curbing and guttering was part pellee says he was lying face down and rath- the cost thereof was payable by the city, so

of the reconstruction of the carriageway, and er behind the motorman, and did not see the that the warrants were invalid. Held, that empty car ahead, or know that it had not such assessments were valid, since the fact been shifted into the room, but he heard the for the reconstruction of carriageway and curb

that in a single ordinance the council provided motorman say

ing did not make the latter work part of the “something about that he would learn him to former. stay out of the way, or get out of the way, and [Ed. Note.-For other cases, see Municipal he swore at the time he said it."

Corporations, Cent. Dig. 88 762, 765; Dec. Dig. Clark Walker was in 20 feet of the empty, om 289.] and stepped off the track to let the motor

Appeal from

Circuit Court, Campbell pass. He heard Hardin Dale call to the mo- County. torman, but did not understand what he said.

Action by Edward J. Knepfle against HenThe motorman said the mine was foggy, and ry Weber. Judgment for plaintiff, and dehe did not see the empty ahead of him until fendant appeals. Affirmed. within about 8 feet of it. He says that no

Nelson & Galagher, of Newport, for appelone signaled or called to him, and that he

lant. did not intend the collision, nor did he speak

Courtland T. Baker, of Newport, for any such words as those attributed to him by appellee. Hardin Dale and the appellee. This being the proof, if the jury believed the motor

TURNER, J. Appellee, a contractor, man, they necessarily believed he was not brought this action against áppellant to subguilty of any negligence. If they believed the ject certain property owned by him on Fairother witnesses, there was but one conclu- field avenue, Belleview, Ky., a city of the sion, and that was that the accident was the fourth class, to the payment of certain street result of his gross negligence. To justify a assessment warrants issued for the reconreversal the error complained of must affect struction of curbing and guttering in front the substantial rights of the appellant, and of appellant's property. The ordinance under that it does so affect them must as clearly which the work was done directed a recon

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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