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Action by T. E. Day against Henry Quell- , below to show that the agent of Day knew malz Lumber & Manufacturing Company. that the sale was to take place on the day From a judgment for plaintiff, defendant advertised and invited it to bid at the sale. appeals. Appeal dismissed.

There was a trial before a jury, and a verC. T. Bloodworth, of Corning, for appel- dict was rendered in favor of Day for the lant. G. B. Oliver, of Corning, for appellee. 100,000 feet of lumber sued for, and its val

ue fixed at $602.40, after deducting the

amount paid by the defendant at the sale. HART, J. T. E. Day sued the Henry Judgment was rendered in favor of the Quellmalz Lumber & Manufacturing Com- plaintiff against the defendant for this pany in replevin to recover 42 stacks of lum- amount on the 3d day of April, 1917, which ber containing about 95,000 feet and alleged was the 2d day of the term. On September to be of the value of $1,000. The lumber 24, 1917, the defendant prayed an appeal and manufacturing company defended on

to the Supreme Court which was granted the ground that it had bought the lumber at by the clerk of the court. On the 26th day an attachment sale made after the attachment of the lumber had been sustained and tion under section 1227 of Kirby's Digest to

of November, 1917, the appellee filed judgment had been rendered against Day in dismiss the appeal on the ground that the favor of the Federal Lumber Company. The appellant's right of further prosecuting the material facts are as follows:

sale had ceased. In support of his motion In the fall of 1914, the Federal Lumber the appellee introduced a certified copy oi Company sued T. E. Day on an account,

the circuit court order, sustaining his excepand had an attachment issued on the ground tions to the report of the sale of the lumber that Day was a nonresident of the state of and ordering that the sale be set aside and Arkansas. The attachment was levied on held for naught. This judgment of the cirthe lumber in controversy, which was stack- cuit court was rendered on the 11th day of ed on his mill-yard. In December, 1914, Day was in the state of Arkansas, and the April, 1917, being the 9th day of the April Federal Lumber Company obtained personal

term. No appeal was taken from that or

der. A consideration of the motion was deservice upon him. The Federal Lumber Company obtained judgment against Day for ferred by this court until the case on appeal the amount sued for, and the attachment was ready for hearing. was sustained. The lumber in controversy

Counsel for appellant in his brief has not was advertised to be sold under the attach- questioned the finding of the jury on the ment on the 12th day of February, 1915.

value of the lumber in controversy but seeks According to the testimony of Day, on the to reverse the judgment on the ground that Saturday before the sale was to occur, he the sale under which it purchased was a

valid one. arranged with the attorney of the Federal Lumber Company to draw a draft on him

[1] It becomes our duty first to dispose of for the balance of the judgment against him the motion to dismiss the appeal. Under and to stop the sale. Thinking this arrange- section 1227 of Kirby's Digest evidence of ment would be carried out, he paid no fur- facts outside the record, occurring after the ther attention to the matter, and was not rendition of the judgment, and showing that present on the day of the sale. The Federal appellant's further right of prosecuting an Lumber Company proceeded with the sale on appeal has ceased, may be received and conthe 12th day of February, 1915, and the Hen- sidered by this court on a motion to dismiss ry Quellmalz Lumber & Manufacturing Com

an appeal. Hopson v. Frierson, 106 Ark. pany became the purchaser of the lumber 292, 152 S. W. 1008; Bolen v. Cumby, 53 at the sale, for the sum of $214.

Ark. 514, 14 S. W. 926.

This amount was immediately paid to the con

[2-5] It will be remembered that the judgstable, who turned the property over to the ment in the present case was rendered on defendant in this action. On Monday the the 3d day of April, 1917, and that the judg15th of February, 1915, the defendant began ment sustaining exceptions to the sale of to move the property. On the 16th day of the lumber under the order from the justice February, 1915, Day instituted this action of the peace and setting the sale aside was in replevin to recover the lumber. A forth- made on the 11th day of April, 1917. No apcoming bond was given by the defendant, peal has been taken from that order. The and it retained possession of the lumber and sole question to be determined in this apsold it. A report of sale was filed in the peal is as to whether or not the lumber bejustice court on March 20, 1915, and on the longs to Day. Adjudication of the question same day Day filed his exceptions to the re- was settled against the appellant by the orport, which were overruled by the court and der setting aside the sale of the lumber the sale approved. On March 25, 1915, Day which was rendered subsequent to the judg. filed an affidavit for appeal. His appeal ment in the present case. That adjudication was granted, and the transcript lodged in the is conclusive against the appellant, and bars circuit court on the 27th day of March, 1915. the further prosecution of his appeal. It The defendant adduced evidence in the court was a final adjudication of the only question

terms.

which is sought to be determined by this had been suspended and whose fatal illness demappeal. Church v. Gallic, 75 Ark, 507, 88 s. onstrated itself after he applied for reinstateW. 307; Jenkins v. Jenkins, 78 Ark. 388, 94 ment, but before he was finally enrolled on the

books of the National Council, could not reS. W. 45. But it is insisted that appellant cover the death benefit. was not a party to that proceeding and is 4. INSURANCE em 726 FRATERNAL INSURnot bound by it. The appellant became a ANCE-BY-LAWS-CONSTRUCTION. party to that proceeding when he purchased

The laws of a beneficial association or order, the lumber at the sale. Porter, Taylor & Co. by which the members are bound as by contract,

are to be liberally construed in favor of the inv. Hanson et al., 36 Ark. 591; Miller v. Hen- demnity of the member or his beneficiaries so as ry, 105 Ark. 261, 150 S. W. 700, Ann. Cas. to effectuate the benevolent purpose of the or1914, 754. Attachment sales are by the der; but the construction must be of the laws terms of our statutes subject to confirmation and it must not be a forced one nor one that

as a whole, rather than of a segregated clause, by the court. Kirby's Digest, § 385. The runs counter to the manifest intention of the contract of sale is not complete until the bid contracting parties expressed in unambiguous of the purchaser is accepted by the court, and until acceptance there can be no en- 5. INSURANCE 764—FRATERNAL INSURANCE

-RIGHT TO BENEFITS. forcement of the contract by either party.

Where beneficiary of member of fraternal Freeman v. Watkins, 52 Ark. 446, 13 S. W. order who had been suspended lost right to re79, Kenady v. Gilkey, 81 Ark, 147, 98 S. W. cover against national council by delay in en969, and Miller v. Henry. 105 Ark. 261, 150 rollment after reinstatement, she could not re

cover against the local council whose by-laws S. W. 700, Ann. Cas. 1914D, 754. Therefore postponed right to benefits until three months the appellant became a party to the attach- after reinstatement; the member having died ment proceedings when it purchased the before expiration of such time. lumber under the attachment sale. The fact

Certiorari to Court of Civil Appeals. that the costs of the litigation will fall upon

Bill by Mrs. D. W. Honea against the the appellant does not afford a sufficient American Council No. 27, Junior Order of reason why the court should decide the ques- United American Mechanics and others. To tions raised by the appeal. It is not the pol- review a judgment of the Court of Civil Apicy of our law with respect to litigated cases peals, affirming judgment of the chancery to decide questions which have ceased to be court for defendant, plaintiff brings certioraan issue by reason of facts having inter

ri. Affirmed. vened rendering their decision of no practical application to the controversy between

J. W. Staples and Wm. M. Hannah, both the litigants. Pearson v. Quinn, 113 Ark. 24, of Harriman, for Mrs. D. W. Honea. Cassell 166 S. W. 746; Tabor v. Hipp, 136 Ga. 123, & Harris, of Harriman, for American Coun70 S. E. 886, Ann. Cas. 1912C, 246.

cil, No. 27, J. 0. U. A. M. It follows, therefore, that the appellant's right of further prosecuting the appeal in

WILLIAMS, J. The bill of complaint was this case has ceased. It will therefore be filed against the local council and the nationdismissed. It is so ordered.

al council of the Junior Order of United American Mechanics, to recover $500 claimed to be due as funeral benefits arising on the

death of complainant's husband. The chan. HONEA v. AMERICAN COUNCIL, NO. 27, cery court and the Court of Civil Appeals J. O. U. A. M., et al.

denied a recovery.

The case has been (Supreme Court of Tennessee. Feb. 11, 1918.) brought before this court by a petition for 1. INSURANCE Em 805(1)–FRATERNAL INSUR- certiorari. ANCE-EXHAUSTION OF REMEDIES.

One of the defenses of the order sustained A beneficial order or association may validly stipulate that remedies must be exhausted by an by the Court of Civil Appeals is based upon appeal to a higher tribunal of the order, pro- the claim of failure on the part of the reprevided for the adjudication of claims, though itsentative of deceased to exhaust remedies may not wholly deprive its member of the right within the order before appealing to the to invoke the aid of the courts of the land. 2. INSURANCE 805(1) - FRATERNAL INSUR

courts for relief. ANCE-EXHAUSTION OF REMEDIES.

The laws of the funeral benefit departWhere the right to a funeral benefit against ment provide, in section 23, for an appeal a fraternal order is involved, the beneficiary from a refusal of the secretary manager of may sue without appealing to the judicatories within the order, though the by-laws provided the national council to pay a death claim, for appeals therein, if they did not expressly in- and that within 60 days from the decision a hibit suit in the courts before exhaustion of the bill of particulars is to be filed with that remedies within the order.

official, giving all the facts of the case, in 3. INSURANCE C 761 FRATERNAL INSURANCE – RIGHT TO RECOVER – TIME OF REIN- which event the appeal and all papers are to

be placed before the "national judiciary for Under by-laws of fraternal order, entitling final adjudication." beneficiary to receive funeral benefits for the

[1] A beneficial order or association may death of a member, not caused from any disease which had demonstrated itself prior to his re

validly stipulate that remedies must be so Instatement, the beneficiary of a member whol exhausted, as by an appeal to a higher tri

STATEMENT.

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

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bunal of the order, provided for the adjudica We are of opinion that the true construction of claims, though it may not wholly de- tion of the laws quoted is that such demonprive its member of the right to invoke the stration of disease prior to reinstatement on aid of the courts of the land. McGuinness v. the rolls of the national council at its headCourt Elm City No. 1, 78 Conn. 43, 60 Atl. quarters prevents a recovery in this case. 1023, 3 Ann. Cas. 209, and note; note Ann. [4] It is true that the laws of a beneCas. 1915B, 318; 7 C. J. 1121.

ficial association or order, by which the [2] But a number of the courts, this court members are bound as by contract, are to among them, hold that, where property rights be liberally construed, in favor of the inare involved, as here, a member may first demnity of the member or his beneficiaries bring suit without appealing to the ju- so as to effectuate the benevolent purpose of dicatories within the order, unless there the order; but the construction must be of the is found incorporated in the laws of the laws as a whole, rather than of a segregated order, or the contract, an express inhibi- clause, and it must not be a forced one or tion to the contrary. Benson v. Grand Lodge one that runs counter to the manifest intenB. L. H. (Ch. App.) 54 S. W. 132, and cases tion of the contracting parties, expressed in cited 7 C. J. 1122.

terms that are not fairly ambiguous. PleasThere appears no such prohibition in the ants v. Locomotive Engineers', etc., Asso., laws governing the funeral benefit depart. 70 W. Va. 389, 73 S. E. 976, Ann. Cas. 1913E, ment. We, therefore, are unable to approve 490, and note; 7 C. J. 1077. the ruling made on this point by the Court Any ambiguity on the point in the clauso of Civil Appeals.

last quoted from the laws is removed by a [3] But it is contended by the respondents reading of the one first quoted. that a recovery is not awardable because [5] The complainant insists that she is enof another provision in the order's laws in titled to recover of the local council, Ameriregard to the time of the demonstration of can Council No. 27, of Harriman, whatever the disease which resulted in Honea's death. may be her lack of remedy against the naSection 15 of these laws provides:

tional council; and as a part of the conten. "Immediately upon the death of a member in tion it is urged that the forwarding of the good standing in his council,

and en- reinstatement papers was due to the neglect titled by the laws of the funeral benefit department and the constitution of his state council of the officers of the local council. and the laws of his council to death benefits, Passing the question as to complainant's and whose death is not caused

from right to a judgment against the local council, any disease which had demonstrated itself prior if it be a nonincorporated association, we to his enrollment or reinstatement into the funeral benefit department,” payments shall be think that nonliability is made manifest by made in manner set forth.

the following by-law of council No. 27, which

is a body of rules distinct from those of the Another provision is, in substance, that no national council: claim shall be made for benefits upon the

"The person elected for reinstatement into this death of any member from a disease which council shall not be considered a member until “may have demonstrated itself prior to his he pays the stipulated reinstatement fee, and in admission to the order and his enrollment in such case shall not be entitled to benefits until

the expiration of three months." the funeral benefit department and rein. statement therein."

As seen, Honea died before three months Would the demonstration of disease prior had elapsed following his readmission into to Honea's reinstatement by enrollment at the local council. headquarters of the national council defeat The result reached by the Court of Civil recovery, if it did not precede his admission Appeals was a correct one. Affirmed. to the lodge? Is the reinstatement the legal equivalent of readmission to the local lodge?

The facts illustrating this contention are as follows: Many months prior to March 15, 1915,

CINCINNATI, N. 0. & T. P. RY. CO. v. Honea defaulted in the payment of dues,

MORGAN. and was suspended. In the early part of (Supreme Court of Tennessee. Feb. 11, 1918.) that year he made application for member

1. COMMERCE 27(5) — RAILROADS ENGAGED ship in the order by way of reinstatement.

IN “INTERSTATE COMMERCE. He was thus admitted into the local council To be within the federal Employers' Liabilion March 15, 1915, but the evidencing papers ty Act (Act Cong. April 22. 1908. c. 149. 35 were not forwarded by the local officer to Stat. 65 [U. S. Comp. St. 1916, SS 8657–8665)),

one need not be directly engaged in an interstate the headquarters in Pittsburgh, Pa., until the train movement; the test being whether his 18th. They were not received there, so that task was so directly and immediately connected Honea's name could be enrolled, until the therewith as to form a part or necessary inci

dent, even though only preliminary, thereto. 20th. Between March 15th and the 20th he was confined to his bed by reason of the and Phrases, First and Second Series, Inter

[Ed. Note.--For other definitions, see Words illness that led to his death on March 26th. I state Commerce.]

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

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2. COMMERCE ww27(7) — RAILROADS – USE OF , exclusively and habitually in runs north ENGINE IN "INTERSTATE COMMERCE."

from Oakdale to Danville. Narrow bridges to Where a locomotive was habitually and exclusively used in interstate train movements,

the south prevented the use of that class in and not designated for any intrastate or mixed journeys to Chattanooga, Tenn., the next diuse, an employé working upon it was engaged vision point in that direction. Engine No. in interstate commerce.

813 had come in from Danville pulling train 3. COMMERCE E27(7)—RAILROADS-FEDERAL No. 15, and after lying at Oakdale for 134 EMPLOYERS' LIABILITY ACT — INTERSTATE COMMERCE."

hours was to pull return train No. 16 to Where an engine had been specifically de- Danville. In the meantime the accident to signated for a certain interstate train, and a Morgan happened. hostler was told to fire and prepare the engine for such train, and while doing so was injur

It appears that in firing the engine a ed, he was engaged in interstate commerce with blowpipe was used, and that it was inserted in the federal Employers' Liability Act.

by Morgan in the smokestack and left for 4. MASTER AND SERVANT, Ow286(32)-NEGLI- some time. When the hostler returned and GENCE-QUESTION FOR JURY. Where an engine hostler was struck and in

was removing the blower, it struck against jured by the dropping of a hood on a smoke- | the stack, and one of its sections became destack by an inspector of equipment, the question tached and fell back into the boiler. Morgan of negligence of the company was one of fact for then went to get Jones, the boilermaker of the jury, on the inference that the inspector or his helpers, if exercising due care, would have defendant, to supervise opening a door in seen the hostler and avoided the injury.

the head of the boiler in order to admit of 5. MASTER AND SERVANT Oma 228(1)CONTRIB- a helper going in and recovering this detach

UTORY NEGLIGENCE NOT PRECLUDING RE-ed section of pipe.
COVERY.
Where a servant was guilty of contributory

It appears that the inspector of equipnegligence, his recovery is not precluded by the ment who was engaged in inspecting a nearby federal Employers' Liability Act.

engine saw Morgan leave engine No. 813, Certiorari to Court of Civil Appeals.

and the inspector proceeded to the latter loSuit by W. E. Morgan against the Cincin- comotive to test its air appliances and other nati, New Orleans & Texas Pacific Railway it had been fired up. There is some evidence

mechanical equipment, as was his duty after Company. Judgment for plaintiff was reversed by the Court of Civil Appeals, and to the effect that an assistant was on the

cab of engine 813 with the inspector-on the plaintiff brings certiorari. Judgment of Court of Appeals reversed, and that of lower cab of the engine, Morgan, Jones, and a

left side. While the inspectors were on the court affirmed.

helper returned, and after the boilerhead Horace M. Carr, of Harriman, for Cincin- had been opened Morgan ascended the pilot nati, N. 0. & T. P. Ry. Co. Cassell & Harris, and was standing in front of the smokestack, of Harriman, for Morgan.

where, leaning over, he reached down to re

ceive the section of the blower pipe as it WILLIAMS, J. This suit was brought by would be handed up to him by the helper Morgan to recover damages for personal in- who had crawled within. In this position juries; the action being founded on the fed- Morgan was struck by a heavy oval metal eral Employers' Liability Act. He was hood which was attached to the smokestack granted a judgment based on the verdict of for use as a fender to protect the enginemen a jury in the circuit court, after a motion from gusts of smoke and cinders as the of the defendant railway company for per- locomotive ran through tunnels on defendemptory instructions had been overruled. ant's line of railway. This hood was sudOn appeal the Court of Civil Appeals, re- denly moved in his test of its working conversing the judgment, sustained the motion dition by the inspector from his place in the for instructed verdict, and dismissed the cab. The inspector did not know of the suit.

presence of Morgan on the boiler when he A petition for certiorari was filed by Mor- turned the valve that operated the hood. gan under which we ordered and have heard He could only have seen Morgan by putting oral argument.

his own head out of the cab window. He An underlying question is whether Mor- was on the right side; but his helper was gan was employed at the time he was injured on the opposite side, and Morgan stood toin work which brings his case within the ward the left side of the smokestack. act of Congress upon which it is based. On the fundamental question we are of

He was a hostler in the yards of the rail- opinion that Morgan was, at the time he was way company at Oakdale, Tenn., which is a injured, engaged at a task that falls within division terminal. He was engaged at night the scope of the federal Employers' Liability work, firing engine No. 813, which by bulle- Act. All that he did looked to the firing of tin announcement or by a call (known to the engine and turning it over in proper conMorgan) had been designated to pull an in- dition to be attached to and as a part of terstate passenger train from Oakdale to an interstate train. Danville, Ky. Engines of its class—the 800 [1] Each case based on the act must be class-were to all intents and purposes used I decided in the light of its own facts, and

For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes
201 S.W.-9

an

necessarily there arise many border-line cas-, R. Co., 166 N. C. 24, 81 S. E. 1003; Smiegil
es. The test by which to determine whether, v. Great Northern R. Co., 165 Wis. 57, 160
at the time of a given injury, the employe N. W. 1057; Richey on Federal Emp. Lia-
was engaged in an interstate commerce trans- bility (2d Ed.) $ 40.
action is: Was his act one which was so [3] (b) It appears, further, that there was
directly and immediately connected with a specific designation of the engine in ques-
such business as substantially to form a tion for an interstate journey before Morgan
part or a necessary incident thereof? New began to fire it. Would the benefits of the
York Cent., etc., R. Co. v. Carr, 238 U. s. act be denied to the regular fireman who
260, 35 Sup. Ct. 780, 59 L. Ed. 1298.

followed Morgan by a few minutes and who, In order to bring the employé within the let us assume, was injured while engaged in protection of the act, it is not necessary that opening the furnace door to replenish the he be directly engaged in interstate

fire before the engine was moved; or again, train movement, since his task may be but to the engineer while in the act of pulling the an incident, preliminary but necessary, to throttle? We can see no substance in any

attempted distinction. If one of three be that movement. In Norfolk & Western R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. so engaged in interstate commerce, so are

the other two. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172, the employé whose action was sustained was Supreme Court of the United States, a dis

Certain it is that under the ruling of the
injured while piloting a locomotive through tinction cannot be founded on the fact that
the yard, by walking ahead of it, to the a hostler is one engaged in taking prepara-
main track, where it was to be attached to tory steps, or doing work that is preliminary
an interstate train.

to an interstate train trip. In North Car-
[2] The railway company mainly relies olina R. Co. v. Zachary, 232 U. S. 248, 34
upon the recent case of Minneapolis & St. Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C,
L. R. Co. v. Winters, 242 U. S. 353, 37 Sup. 159, it was recognized that work in preparing
Ct. 170, 61 L. Ed. 358, where it was held instrumentalities of interstate commerce for
that a machinist's helper engaged in the immediate use therein is so intimately re-
making of repairs in a roundhouse upon anlated to such commerce as to become a part
engine which had been used in hauling of it. It was said:
trains which had carried both intrastate and "It is argued that because, so far as ap-
interstate freight, and which was used in pears, deceased had not previously participated
like service after the accident, was not then through cars had not as yet been attached to

in any movement of interstate freight, and the
employed in interstate commerce within the his engine, his employment in interstate com-
meaning of the act. It was said:

was still in futuro. It seems to us, “An engine, as such is not permanently de- firing, and preparing

his engine for the trip to

however, that his acts in inspecting, oiling,
voted to any kind of traffic and it does not ap- Selma were acts performed as a part of inter-
pear that this engine was destined especially to
anything more definite than such business as it interstate freight cars had not yet been coupled

state commerce, and the circumstance that the
might be needed for. It was not interrupted in
an interstate haul to be repaired and go on. up is legally insignificant."
It simply had finished some interstate business See, also, Southern R. Co. v. Puckett, 244
and had not yet begun upon any other. ItsU. S. 571, 37 S. Ct. 703, 61 L. Ed. 1321, and
next work, so far as appears, might be inter-cases cited; Byram v. Ill. Cent. R. Co., 172
state or confined to Iowa, as it should happen.
At the moment it was not engaged in either. Iowa, 631, 154 N. W. 1006; Staley v. II.
Its character as an instrument of commerce Cent. R. Co., 268 Ill. 356, 109 N. E. 342, L.
depended on its employment at the time, not R. A. 1916A, 450; Lloyd v. North Carolina
upon remote probabilities or upon accidental R. Co., supra; Hinson v. Atlanta, etc., R.
later events."

Co., 172 N. C. 616, 90 S. E. 772.
We understand this to mean that an en- The character of the engine, therefore, did
gine may be designated or "destined" for in- not depend on any probability or upon any
terstate business, so as to bring one engaged | accidental later event. The test event of des-
at work on it within the protection of the ignation preceded Morgan's going upon it,
act, even before it begins to move on an in- and we think firmly fixed its status as an in-
terstate journey. We are of opinion that strumentality of interstate commerce, so far
such designation is to be found in this case as his rights are concerned. How else could
in either of two aspects:

Morgan have viewed it after having been
(a) The locomotive was habitually and ex-directed to fire the locomotive for a trip to
clusively used in interstate train movements, Danville, Ky.? The chance that there would
and such use involves an initial designation be a countermand of the order of designation
which continues to impress upon the engine was itself if a probability, then one too re-
the character of an instrumentality of in- mote for consideration, as a practical ques-
terstate commerce until by some affirmative tion; and until in fact given Morgan's status
act of the railway company it is diverted for recovery, it seems, would not be changed.
into an intrastate or mixed channel. Balti- At the moment of the injury that status
more, etc., R. Co. v. Darr, 204 Fed. 751, 124 was one controlled by the act.
C. C. A. 565, 47 L. R. A. (N. S.) 4; Law v. The Court of Civil Appeals erred, therefore,
Ill. Cent. R. Co., 208 Fed. 869, 126 C. C. A. in holding that Morgan was not engaged in
27, L. R. A. 1915C, 17; Lloyd v. Southern a work of interstate commerce when injured.

merce

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