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for legal services rendered to it its promis- y charged or proven against the plaintiff, and sory note for $300 to its attorney, 0. C. that no fiduciary relation existed between Pratt. Prior to its maturity the payee, for him and any of the parties to the transaca valuable consideration, transferred it to the tion, and that title to the note was vested in plaintiff. At its maturity it was unpaid. him, Subsequently H. J. Small became a judgment (1) Passing now to the only objection seri. creditor of the company in the sum of $3,000. ously urged by the appellant for a reversal It also appears from the record that Mrs. H. of the judgment, it is that the plaintiff has A. Gillis was indebted to the company in the apparently proceeded upon the theory that sum of $1,000 upon a stock subscription, the his remedy was an action in claim and deindebtedness being evidenced by her promis- livery. In such an action it is essential that sory note, given, however, with the under the specific personal property claimed should standing that the note was not to be negoti- be described with a reasonable degree of cerated. Contrary to this agreement it was ne- tainty; and as a rule money is not the subgotiated; and Mr. Henley C. Booth, attorney ject of such an action unless it be marked or for both H. J. Small and Mrs. H. A. Gillis, designated in some manner so as to make it wishing to find out who had possession of the specific as regards its capability of identific note, communicated with plaintiff by tele- cation. Eddings v. Boner, 1 Ind. T, 173, 38 phone, telling him that he represented Mrs.S. W. 1110; Griffith v. Bogardus, 14 Cal. 410, Gillis, and asking him if he knew where the 413; Sharon v. Nunan, 63 Cal. 235; Hawley note was. Plaintiff replied that he did not, v. Kocher, 123 Cal. 77, 55 Pac. 696. The de. but would try to find out and let Mr. Booth scription of the money in this case is not know. Later, having ascertained that the sufficient to entitle the plaintiff to its return note was held by a Mr. W. W. Allen, plaintiff is specie. communicated with Booth, and negotiation [2] The complaint, however, irrespective of ensued, resulting in Booth agreeing to pay what the plaintiff has styled it, is sufficient plaintiff the sum of $730 for it. The latter to show him to be entitled to recover from then purchased the note from Allen, paying the defendant the amount of money taken him therefor the sum of $550, hoping appar- from him wrongfully under execution, upon ently through the completion of the transac- the theory that he has, as required by the tion with Booth to recoup in part the loss he Code, stated the facts constituting his cause had sustained by his purchase of the note of action, or facts showing a cause of action, given by the company to Pratt, the company for money had and received. Under the cirbeing now insolvent.

cumstances of this case the judgment of the About this time, according to the argument trial court must be sustained notwithstandof the respondent, Booth appears to haveing the contention of the appellant, as it is conceived the idea of acquiring for Mrs. Gil- apparent from a decision of our own Sulis her note, and that the price to be paid for preme Court in Faulkner v. First National it should go to his other client, Small. AC-Bank, 130 Cal. 258, 62 Pac. 463, where it is cordingly, he agreed with the plaintiff that said: the payment of the $750 for the note should “Courts and law writers have sometimes inadbe made in his (Booth's) office, at a certain vertently spoken of the Code 'action of claim time, harboring the intention, however, that form of action called by that name-just as there

and delivery' as if there were really here a at the moment of receiving the note from the were forms of action at common law, such as plaintiff and tendering. payment thereof the debt,' 'covenant,' 'replevin.'. 'trover,' etc. But money should be seized in execution of we have here no forms of civil actions. We have

only one form of action, which has no name; Small's judgment. This plan was carried so that an action cannot be here defeated, as out, so that when the plaintiff's agent handed it could have been at common law, because not the note to Booth the latter placed $730 in properly named. Sections 509 to 520 of the currency on the desk in front of him, and be heading claim and delivery of personal prop

Code of Civil Procedure are preceded by the fore the messenger of the plaintiff could pick erty,'. but the sections themselves show the it up, a deputy of the defendant, who was meaning of this heading. They merely provide waiting in the room for that purpose, seized brings an action to recover personal property,

an auxiliary remedy by which, when a party the currency and levied upon it pursuant to he may 'claim that the property be immediately an execution issued in favor of Small upon delivered to him at the commencement of the a judgment obtained by him against the Se These sections merely give to a plaintiff suing to quoia Motorcar Company. Plaintiff immedi- recover personal property an auxiliary remedy ately demanded of the defendant the return very similar to the auxiliary remedy of 'attachof the money, and filed with him a claim for ment' given to a plaintiff suing upon a contract

for the direct payment of money, and to the auxthe same. Defendant refused to comply with iliary remedy under the head of 'arrest and bail his demand, whereupon plaintiff brought this and 'injunction during litigation.' But it is no action for its recovery.

more proper to speak of an action of claim and The record further shows that the plain-delivery than to speak of an action of attach

ment. tiff, prior to its maturity and without notice

The judgment is affirmed. of the collateral agreement of the company not to transfer it, paid a valuable considera We concur: LENNON, P. J.; RICH tion for the note; that no fraud was either ARDS, J,


(22 Cal. App. 735)

ance is placed upon the fact that at the date ROBINSON v. SMITH-BOOTH-USHER CO. of this accident, November 25, 1911, there (Civ. 2198.)

was in force a statute relating to the liability (District Court of Appeal, Second District, Cal- of employers to their employés (Stats. 1911, ifornia. Feb. 7, 1917.)

p. 796), wherein it was provided that in ac

tions of this class : 1. TBLAL 296(4, 5)-INSTRUCTIONS


"The fact that such employé may have heen Where the judge erroneously instructed that guilty of contributory negligence shall not bar a servant could not recover for injuries if he was recovery therein where his contributory negli. contributorily negligent in any degree, the error gence was slight and that of the employer was was cured by subsequent specific instruction gross, in comparison, but the damages may be repeated a second time that the servant's recov- diminished by the jury in proportion to the ery if he was contributorily negligent should amount of negligence attributable to such emmerely be diminished in the proportion that his ployé.” Section 1. Degligence bore to that of his master. [Ed. Vote.-For other cases, see Trial, Cent. of by appellant, the court gave to the jury

In addition to the instructions complained Dig. $ 709.) 2 APPEAL AND ERROR W928(1)—PRESUMP- an instruction requested by plaintiff, stating TIONS-RECORD-SUFFICIENCY OF PRESENTA- | the doctrine of contributory negligence in acTION OF QUESTIONS.

cordance with said statute. In view of Code Civ. Proc. $ 475, providing that there shall be no presumption that error

[1] At the close of his reading of instrucis prejudicial, where complaint is made of in- tions to the jury, the judge suggested that structions, but all the instructions are not in there was an inconsistency in the instruccluded in the record, no error is shown. [Ed. Note. For other cases, see Appeal and ly directed the attention of the jury to the

tions relating to that issue. He then specialError, Cent. Dig. $$ 3749, 3753.)

instruction which he had given at plaintiff's Appeal from Superior Court, Los Angeles request and read it to them a second time, County; Frank F. Oster, Judge.

with the further direct statement that this Action by E. J. Robinson against the Smith a correct statement of the law. In Booth-Usher Company. From judgment for view of this action by the court, we deem it defendant and order denying motion for new

unnecessary to examine the instructions comtrial, plaintiff appeals. Affirmed.

plained of. Assuming that they were erroRandall & Gaines and Shepard & Alm, all neous, the instruction as finally given had of Los Angeles, for appellant. Oscar Muel. the effect of withdrawing those erroneous ler, Gibson, Dunn & Crutcher, and Norman instructions from the consideration of the 8. Sterry, all of Los Angeles, for respondent. jury. That a court may thus correct its own

error seems too plain to leave room for arCONREY, P. J. This is an action wherein gument. the plaintiff seeks to recover damages for [2] Appellant also complains of defendpersonal injuries sustained by him while em- ant's instructions numbered 14 and 24 as ployed by the defendant in its machine shop; given by the court. These instructions reit being alleged that these injuries were lated to the question of negligence of the decaused by the negligence of the defendant. fendant, if from the evidence the jury believThe answer denied all negligence on the part ed certain stated facts. The criticism upon of the defendant, and also pleaded contribu- these instructions is that each of them purtory negligence on the part of the plaintif. ported to state a complete defense, but omitThe jury returned a verdict for the defend- ted certain facts concerning which evidence ant, and judgment was entered accordingly. had been introduced pertaining to defendThe plaintiff appeals from the judgment and ant’s alleged negligence. Assuming that the from an order denying his motion for a new omitted evidence should have been stated, trial.

the record is not in the condition necessary Appellant first insists that the evidence to enable us to determine that the error was proved negligence on the part of the defend- prejudicial to the plaintiff. ant and failed to prove contributory negli “There shall be no presumption that error is gence of the plaintiff. There was a substan- prejudicial, or that injury was done if error is tial conflict in the evidence upon these ques- shown." Code of Civ. Proc. § 475. tions, and the evidence favorable to the de The statement of the case, as set forth in fendant, if believed by the jury (as it was), the transcript, says that: is sufficient to support the verdict.

The court, "on its own motion and at the reAppellant directs attention to certain in- quest of the plaintiff, instructed the jury in part structions given by the court to the jury at

as follows." the request of the defendant. It is claimed After setting forth certain instructions that by these instructions the jury was told thus given, it is further said: that, if the plaintiff was guilty of a want of "That thereupon the court instructed the jury ordinary care in the slightest degree con

in part as follows, at the request of the defendtributing directly to his injury, plaintiff could not recover, regardless of the negli After setting forth those instructions, it is gence of the defendant or its servant. Reli said that:

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


"Other instructions were given by the court | made for her maintenance; the discretion of of its own motion and by request of plaintiff and the trial court not being arbitrary, but to be defendant not here set forth."

exercised in view of the necessities of the parThere is not even a statement that the in-ties, and defendant's financial condition and structions placed in the record include all of possessions and her accustomed style of living,

his earning capacity, together with plaintiff's the instructions given with respect to the being proper elements to be regarded. propositions covered by the instructions put [Ed. Note.-For other cases, see Husband and into the record.

Wife, Cent. Dig. & 1093.] “It is said in the transcript that the instruc-4. WITNESSES C 275(3) CROSS-EXAMINAtion complained of, among others,' was given. TION-ACTION FOR SEPARATE MAINTENANCE. The others referred to are not contained in the

Where plaintiff set up defendant's having transcript, and we have no means, therefore, of had her committed to a hospital for the insane judging what bearing they may have had upon as an act of cruelty, and, on her direct examithe one in question. If it should be conceded, nation, she testified to facts concerning the octherefore, that the instruction complained of currence that would necessarily create the imshould have been qualified or modified in some pression that she was sane at the time, defenddegree, it may be that the instructions omitted ant's inquiry on cross-examination, directed to would have qualified or modified the one in ques- the point that plaintiff did not know she was tion, and the rule is well settled that instruc- examined or committed, in other words, that tions are to be read and considered as a whole, her mind was a blank' as to what happened, and the fact that, when taken severally, some should have been permitted. of them have failed to enunciate in precise terms

[Ed. Note.--For other cases, see Witnesses, and with legal accuracy propositions of law, does Cent. Dig. $ 969.) not rerder them erroneous. Hanson v. Stinehoff, 139 Cal. 171, 173, 72 Pac. 913, 915. 5. HUSBAND AND WIFE 297–ACTION FOR

"Where numerous instructions are given [as SEPARATE MAINTENANCE — PREPONDERANCE in this case) it may well be that some particular OF EVIDENCE. instruction fails to contain a complete or ac In a wife's action for separate maintenance curate statement of the law. If, however, when on the ground of cruel and inbuman treatment, the entire charge is examined the omissions or the law requires that the jury be convinced of inaccuracies in a particular instruction appear cruelty by a preponderance of evidence to justito have been supplied, and the jury fairly and fy finding for plaintiff. consistently instructed, generally, as to the law, [Ed. Note.-For other cases, see Husband this is sufficient to defeat any claim of error and Wife, Cent. Dig. § 1090.] predicated on defects in particular instructions." Henderson v. Los Angeles Traction Co., 150 6. HUSBAND AND WIFE Cw20842

ACTION Cal. 689, 699, 89 Pac. 976, 980.


TIONS. The judgment and order are affirmed.

The court instructed that if the jury found

plaintiff was sane at the time of the marriage, We concur: JAMES, J.; SHAW, J.

and there was evidence of cruelty, verdict would be for plaintiff in the amount the jury might determine to be adequate, etc., and that, if the

jury believed from the testimony that plaintiff (32 Cal. App. 711)

was treated in a cruel and inhuman manner, PEDREIRA V. PEDREIRA. (Civ. 1632.) as alleged, and that the general treatment of (District Court of Appeal, Third District, Cali- plaintiff by defendant from the time of marriage fornia. Feb. 6, 1917. Rehearing Denied by to the date of commencement of trial was cruel Supreme Court, April 4, 1917.)

and inhuman, verdict would be for plaintiff.

lleld, that the instruction was erroneous as ig1. HUSBAND AND WIFE Www296-ACTION FOR noring the consideration of the weight and SEPARATE MAINTENANCE-EVIDENCE.

credibility of the evidence as to the cruelty and In a wife's action for separate maintenance the jury's proper function in relation thereto, for cruel and inhuman treatment, where the also in failing to state the elements that should pleadings contained no appropriate allegation enter into the determination of the amount to with reference to defendant's acts before the be awarded plaintiff. marriage, plaintiff's evidence that defendant had had intercourse with her frequently for seven Wife, Cent. Dig. $8 1091, 1092.)

(Ed. Note.-For other cases, see Husband and or eight years before their marriage, and at nearly every such occurrence had promised to 7. HUSBAND AND WIFE C20842 ACTION marry her, was improperly admitted as without FOR SEPARATE MAINTENANCE

INSTRUCthe issues, and calculated to prejudice defendant with the jury and court.

An instruction as to the general treatment [Ed. Note. For other cases, see Husband and of plaintiff was not justified by the pleadings, Wife, Cent. Dig. $ 1089.]

there being no allegation of general cruel treat2. HUSBAND AND WIFE Cm 236_ACTION FOR

ment of plaintiff by defendant. SEPARATE MAINTENANCE EVIDENCE

[Ed. Note.-For other cases, see Husband and PLEADING.

Wife, Cent. Dig. $8 1091, 1092.] In an action for separate maintenance on 8. HUSBAND AND WIFE 29813 ACTION the ground of cruel and inhuman treatment, al

FOR SEPARATE MAINTENANCE INSTRUClegations of specific cruel treatment did not war

TIONS. rant admission of evidence of specific acts of In a wife's action for separate maintenance cruelty other than those presented by the plead- for cruel and inhuman treatment, wherein she ings.

alleged, as an act of cruelty. that her husband (Ed. Note. For other cases, see Husband and procured her commitment to a hospital for the Wife, Cent. Dig. § 1089.]

insane, the husband had a right to expect that 3. HUSBAND AND WIFE am 298(1, 2)-ACTION the jury would be instructed along the line sug

FOR SEPARATE MAINTENANCE-INQUIRY IN- gested by him in requests concerning his theory TO WIFE'S NECESSITIES.

as to the wife's insanity at the time of the marThe Court should have permitted an inquiry riage. into plaintiff's necessities and her manner of [Ed. Note. For other cases, see Husband and living in order that a suitable award might be / Wife, Cent. Dig. 88 1091, 1092.)

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


9. HUSBAND AND WIFE em 29842 ACTION | separate maintenance. By way of cross-com

FOR SEPARATE MAINTENANCE - INSTRUC- plaint it was further averred that at the TIONS.

In a wife's action for separate maintenance time of the marriage of plaintiff and defendfor cruel treatment, though the jury's verdict ant she was of unsound mind and not capawas simply advisory, it was nevertheless im- ble of contracting marital relations; that beportant that the jury should be clearly instructed, particularly in view of the usual inclination cause of this insanity defendant prayed for on the part of the judge to adopt its findings, an annulment of the marriage. and the fact that they were adopted.

The action was tried with the assistance [Ed. Note.-For other cases, see Husband and of a jury. The jury found that the plaintife Wife, Cent. Dig. 88 1091, 1092.]

was not insane at the time of the marriage; 10. HUSBAND AND WIFE Em 298(1, 2) - AC that defendant had treated plaintiff in a TION FOR SEPARATE MAINTENANCE-ALLOW. ANCE FOR ATTORNEY'S FEES BURDEN OF

cruel and inhuman manner subsequent to PROOF-STATUTE.

said marriage; that plaintiff had not agreed A wife is entitled to an allowance for at- to accept the sum of $40 per month for her torney's fee in her suit for separate maintenance only when it is necessary to enable her properly separate maintenance; and that $75 per to maintain her action, and the burden is on

month was a reasonable amount for such her to show that the allowance is necessary; purpose. The court adopted said findings Civ. Code, $ 137, governing the matter, contem- and rendered judgment accordingly, and in plating that it shall be made only when neces- addition allowed plaintiff $400 for her atsary to enable the wife to present her case.

[Ed. Note. For other cases, see Husband and torney's fees. Wife, Cent. Dig. § 1093.]

It is claimed by appellant that many prej

udicial errors are disclosed by the record, Appeal from Superior Court, Merced Coun- and we proceed to notice some of the assignty; E. N. Rector, Judge.

ments. Action for separate maintenance without

Over objection, plaintiff was permitted to divorce by Mary Pedreira against A. F. testify that the defendant had had interPedreira. From judgment for plaintiff, de course with her frequently for seven or eight fendant appeals. Reversed.

years prior to their marriage, and that at F. W. Henderson and Hugh K. Landram, nearly every such occurrence he promised to both of Merced, for appellant. Jack Mahon, marry her. The court declared "it would of Merced, for respondent.

not be evidence that you could rely upon,"

but overruled the objection. BURNETT, J. The action, brought under [1] The evidence seems to have been ensection 137 of the Civil Code and grounded tirely outside of the issues made by the upon cruel and inbuman treatment, was for pleadings and could hardly assist "in getting separate maintenance without divorce. The at the truth of the facts disputed." The specific instances of cruelty alleged were: natural effect of such testimony would be to (1) Defendant absented himself during the excite sympathy for the plaintiff and hostilbirth of a child to plaintiff ; (2) defendantity toward the defendant. It can be easily did not provide a doctor or nurse for plain- imagined how the jury, or the judge of the tiff during childbirth; (3) said neglect caused court, for that matter, would regard with inplaintiff great physical pain and mental an- dignation and contempt a man who, under guish by reason of which the child was born repeated promises of marriage had seduced dead; (4) that on April 14, 1914, defendant plaintiff and had actually been guilty of caused plaintiff to be moved to the Merced such illicit conduct while his first wife lay sanitarium, and thence to the Merced coun- upon her deathbed. The prejudice thus ty jail, whence the plaintiff was committed aroused would hardly permit of a dispassionto the state hospital at Stockton; (5) that, ate and impartial consideration of the eviupon her release from said hospital in July dence relevant to the issues made by the 1914, defendant refused to take plaintiff to pleadings. his home or to live with her as his wife. Respondent contends that: In the answer there was a specific denial

"The object of this testimony was, not to of the allegations of cruelty, an admission but to arrive at facts which would and did

prejudice the defendant in the eyes of the jury, that plaintiff was committed to said hospital, throw light on the issues involved. These acts but an explanatory averment that defendant of intercourse bore directly on the attitude of was advised by the medical attendants of the defendant at the time he married plaintiff,

and were the very acts upon which his subseplaintiff that it was necessary, for the pro-quent treatment of plaintiff was based; they tection of the plaintiff and those who might were facts necessary to be before the jury in come in contact with her, that she be com- order to obtain a fair understanding as to the mitted to said hospital because she was vio relations of the parties.” lently insane, and that she was regularly As to this we think plaintiff is in error. committed to the state hospital after a hear. If it had been supposed that it was imporing in the superior court of the county of tant to inquire into the acts of appellant beMerced. Defendant further alleged that fore the marriage, there should have been plaintiff had agreed to accept from defend some appropriate allegation in reference ant the sum of $40 per month as and for her thereto. The fact is, said evidence refers to

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

a time remote from anything referred to in This view of the spirit of the law emphathe complaint and to conduct before mar- sizes the importance of confining the allowriage, whereas the cause of action is entirely ance to the necessary maintenance of the based upon treatment of plaintiff by defend-wife in comfort and decency according to her ant after the marriage took place. Of accustomed standard of living. course, the general rule is as stated in Jones [4] We think the cross-examination of on Evidence, vol. 1, par. 140a, that:

plaintiff in reference to her commitment to "Evidence of other acts of the parties, outside the hospital for the insane was improperly of the acts in record and unconnected with it, curtailed. On her direct examination she are not generally admitted in evidence."

"The rule excludes," as stated in People v. bad testified to facts concerning said occur. Lane, 100 Cal. 379, 34 Pac. 836, "all evidence rence that would necessarily create the imof collateral facts, or those which are incapable pression that she was sane at the time. It inference as to the principal fact or matter in would be argued from this that the husband dispute; and evidence of another offense can- had knowledge of her condition and was not be given unless there is some clear connec- therefore chargeable with cruelty in having tion between the two offenses by which it may her committed. To rebut this unfavorable be logically inferred that if guilty of the one inference several questions were asked of the the defendant is also guilty of the other."

The statement was made in a criminal witness directed to the point that she did not case, but the same principal would manifest mitted; in other words, that her mind was

know even that she was examined or comly apply here. We can see no logical connec

a blank as to what happened. The inquiry tion between said conduct before marriage

was addressed to the same matter involved and the acts after marriage which are set in the direct examination and should have out in the complaint. (2] Objection was also made to evidence of sel for appellant, at the time of the direct

been permitted. It may be added that counother specific acts of cruelty than those pre examination, sought to have respondent de sented by the pleadings. If important enough clare whether she claimed to bave been sane to be shown, they were certainly important at the time she was committed, and her coun. enough to be alleged. It may be permissible sel answered: “Yes, you bet she was.” It is to show a general course of conduct as sup- true that a moment after he said: plementing specific acts of cruelty where only

"I don't claim she was railroaded. The jury the specific acts are set out, but the rulings

can draw their own conclusion. I don't claim complained of could hardly be justified ex- that she was sane or insane." cept upon the erroneous theory that it is not necessary to allege any specific act but that a

However, the effect of her testimony was general allegation of cruel treatment is suffi- as we have indicated, and appellant had the cient.

legal right to subject it to the test of cross[3] We think, also, that the court should examination. The gravity of the inquiry is have permitted an inquiry into the necessi- quite apparent, as it involved the most serities of the plaintiff and her manner of living ous charge of cruelty in the case. in order that a suitable award might be made

After stating to the jury that they must for her maintenance. Manifestly, much dis first find whether plaintiff was sane or incretion in tbis matter must be confided to sane at the time of her marriage, the court, the trial court, but the discretion is not an

on request of plaintiff, gave this instruction : arbitrary one and must be exercised in view "If you find that the plaintiff was sane at of the circumstances of the parties. The the time of the marriage and there is evidence of

cruelty, then your verdict will be for the plainfinancial condition of the defendant and his tiff, in the amount that you may determine to be earning capacity, together with the posses- adequate, and for her attorney's fees and for sions of the plaintiff and her accustomed her costs of suit. style of living, were proper elements to be testimony introduced in this case that the plain

"I instruct you that if you believe from the regarded in the consideration. In Kusel v. tiff was treated in a cruel and inhuman manner Kusel, 147 Cal. 60, 81 Pac. 295, there is an as alleged in the complaint, and you believe interesting discussion of the difference be that the general treatment of the plaintiff by

the defendant from the time of the marriage to tween an allowance to the wife on divorce the date of the commencement of this trial was and the separate maintenance that is contem- cruel and inhuman, your verdict will be for the plated by the Code. Referring to the latter, plaintiff.” it is said:

[5, 6] Probably the most serious objection "The action does not contemplate a divorce, to the instruction is that it authorized the but, on the contrary, that the parties shall continue to remain as they were before, husband jury to find for plaintiff if there was any and wife. The rights of the wife in the remain evidence of cruelty. The law, of course reing property of the husband are not destroyed quired that they be convinced by a preponor affected in the least by the decree or judg- derance of the evidence in order to justify ment. The necessity for the separate maintenance may terminate at any time by reconcilia- such finding. The instruction as given also tion of the parties, or by the death of one of ignored the consideration of the weight and them. The law favors the reconciliation of the credibility of such evidence and the proper parties, and it should not be construed so as to function of the jury in relation thereto. It afford a temptation for the wife to press an action for maintenance rather than to seek is subject, also, to criticism in failing to state restoration to her marital rights."

the elements that should enter into the de

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