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fencing was necessarily and always involved | for the year 1870, wherein it is stated that in all appropriation inquiries prior to the en- the subscriptions were made in conformity actment of the statute requiring railroad with the statute, and the name of the comcompanies to fence, it cannot be conclusively pany changed to that of the Marietta & Cinpresumed to have been involved in this one. cinnati Railroad Company. The court is No attempt has been made to show this, and thus asked to take judicial notice, not only we think it cannot be shown. In the con- of the arts referred to, but of the statement struction of railroads there are many places contained in the report. If this can be done, where fences are wholly impracticable. The the claim is sustained; if it cannot, the contour of the land may be such as to make claim fails, and there is nothing before the fencing impossible, or the existence of per- court to show when, or under what law, the manent buildings just on the line may render Marietta & Cincinnati Railroad Company was a fence wholly unnecessary. This seems too organized. There is apparent conflict of deobvious to need elaboration. It follows, as cision in this state as to what laws will be we think, that the record of the condemna- judicially noticed, and there is at least doubt tion proceedings did not raise a conclusive whether the act of March 21, 1851, can be so presumption that the expense of maintaining noticed. The holding in Brown v. State, 11 a fence was, or might have been, taken into Ohio, 277, is authority to the effect that such account by the jury in making up the ver- a law can be noticed, while the decision in dict, and that the trial court committed no Railway Co. v.‘Moore, 33 Ohio St. 384, is to error in refusing the instruction asked. the contrary. We will not here attempt to

Another question arises in the case: It reconcile these cases. But it may be said of was vital to the company's defense to show the earlier act, that, although it is in the that neither the act of May 1, 1852, nor the form of a special law, and classed among the act of March 25, 1859, applied to the Marietta local laws in the yearly volume, yet it is rath& Cincinnati Railroad Company. Every rail. er of a public than private nature, inasmuch road organized under the former act came as it contains grants of sovereignty, interestwithin its requirement as to fencing, and pre- ing as well the community whose rights are sumably all railroad companies are brought thereby contracted, as the corporators whose within the provisions of the latter act. The rights are thereby enlarged. And assuming, burden, therefore, was on the company to without holding, that both acts referred to show that it was exempt from the duty im- may be judicially noticed, there still remains posed by those acts. It was admitted at the the question whether the contents of the comtrial that the defendant is the successor of missioners' report can be so treated. There the Marietta & Cincinnati Railroad Company, are certain executive documents, such as offias reorganized, and that the last-named com- cial proclamations, treaties with foreign powpany was the successor of the Marietta & ers, and other public documents issued by Cincinnati Railroad Company, original con- the executive or legislature, which courts structor of the railroad, and that the Cincin- will notice judicially, but an examination of nati, Washington & Baltimore Railroad an extended line of authorities fails to disCompany, defendant, is the owner of the close a single holding to the effect that docurights of way and franchises of the Marietta ments similar to that of the commissioners' & Cincinnati Railroad Company. It is now report may be classed among those of which claimed in argument that the Marietta & judicial notice will be taken. Nor can the Cincinnati Railroad Company was originally claim be sustained upon reason. In general, incorporated as the Belpre & Cincinnati Rail courts will judicially notice only such facts, road Company by special charter, March 8, or conclusions from facts, as are not the 1845, and that by an act passed March 21, proper objects of evidence. Such are styled 1851, to amend the incorporation act of the “non-evidential.” 1 Whart. Ev. g 277. It Franklin & Ohio River Railroad Company, cannot be said that the court, from its preand for other purposes, it was provided that, sumptive knowledge of the law or of public upon certain subscriptions therein authorized events, would have within judicial cognizance being made, the name of the Belpre & Cincin the statement of the commissioner of railnati Railroad Company should thereupon be roads as to an antecedent fact. The question changed to the Marietta & Cincinnati Rail- whether or not the statute of March 21, 1851, road Company; that the subscriptions were had been complied with, could have been put paid, and the corporate name thereupon be- in issue in the pleadings. It would then came changed at once to the Marietta & Cin- have been a proper subject of evid-nce, and cinnati Railroad Company, and it always could have been established or disproved by acted and was known by that name. It is any witness having knowledge of the fact. not insisted that there is any allegation, This could not be true as to matters which proof, or admission of this claim. Reference the court may judicially notice. Whether or is made to the several acts, which show the not this report would have been competent incorporation of the roads as stated. To evidence, under proper pleadings, of the sustain the statement that the sabscriptions statement referred to, we need not inquire. were paid, and hence that the corporate name Under the authority of some adjudicated became changed at once to the Marietta & cases, it would appear to be competent, while Cincinnati Railroad Company, counsel cite others (notably Gordon v. Bucknell, 38 Iowa, the report of the commissioner of railroads | 438) would seem to hold the contrary. In

the Iowa case the court held that the report tenth instruction as follows: "(10) It is for of the register of the state land-office was you to determine the issue from all the evinot competent to show that certain lands in dence in the case. The burden of proof is controversy had been patented to a railroad upon the defendant, and before it can sustain company. However, it is not with a ques- the issue it must prove the allegations of this tion of evidence we are dealing, but with a paragraph of the answer by a fair preponderquestion of what courts will notice without ance of the evidence. The receipt given evidence.

may be explained by parol evidence, and all We are of opinion that the report cannot the facts going to establish or tending to be resorted to by the court for a knowledge prove the compromise or settlement can be of the statement therein contained, and shown by parol testimony, notwithstanding without it there was nothing before the the receipt executed by the plaintiff. You court to establish that the Marietta & Cin- should determine the issue from all the facts, cinnati Railroad Company, existing in 1853, circumstances, and evidence in the case; and was the company contemplated in the act of if you find that the settlement or compromise March 21, 1851. And inasmuch as proof was full and fair in all its parts. was made in that this company was organized prior to the good faith, and was entered into by plaintiff act of May 1, 1852, was necessary to the with a full knowledge of the facts, and she company's defense, and is not shown except was not deceived or misled thereto by any by the report referred to, such defense was act or representation of defendant's agents, necessarily unavailing. Judgment atfirmed. then you should find upon this issue for de

fendant. But if the settlement was made (121 Ind. 121)

not in good faith, or was obtained by the HOME INS. Co. v. McRICHARDS. misrepresentation of the defendant's agent, (Supreme Court of Indiana. Nov. 21, 1889.)

and it is shown by the evidence that the

plaintiff was led into such settlement by the COMPROMISE-FRAUD. Where, in an action on an insurance policy,

deceit, fraud, or misrepresentation of dea compromise and money accepted by the plaintiff fendant's agent, then you should find on the in full settlement are set up as a defense, a charge issue for the plaintiff.” This instruction is that, if the settlement was made mala fide and ob-clearly erroneouis. tained by the misrepresentations of the defendant, been an honest dispute as to the liability of

There appears to have and the plaintiff was led into it by deceit or fraud, then plaintiff could recover on the policy, is error, the defendant to pay the claim. The applisince the plaintiff is not entitled to so ignore the cation warrants the property free from insettlement after having received benefit under it. cumbrances, and that she is the sole owner

Appeal from circuit court, Washington thereof, and these facts are in good faith discounty; THOMAS L. COLLINS, Judge. puted, and a compromise is entered into, by

Action by Lavinia J. McRichards against which $500 is paid in satisfaction of the polthe Home Insurance Company of New York. icy. The instruction is clearly antagonistic Judgment for plaintiff. Defendant appeals. to the doctrine held in the case of Insurance

Harrison, Miller & Elam, for appellant. Co. v. Howard, 111 Ind. 544, 13 N. E. Rep. Zaring & Hottel, for appellee.

103. In that case it is said: “One who has

been led into a contract upon which he has OLDS, J. This is an action upon an in- received something of value can not ignore surance policy given for $1,000. The com- the contract, however induced, and proceed plaint is in the usual form, and no question in a court of law as if the relations of the is presented as to its validity. The defend-parties were wholly unaffected thereby. He ant answered in three paragraphs,—the first cannot, while retaining its benefits and thus a denial. The second sets up breach of war- affirming the contract, treat it as though it ranty. The third pleaded that the plaintiff did not exist." The instruction is to the efhad warranted in her application that she fect that if the plaintiff had entered into the was the sole owner of the property, and that compromise in good faith, with full knowl. it was free from incuinbrances, and alleged edge of all the facts, and had not been in any that there was a breach of such warranties, way misled or deceived by the defendant or and that after the property was destroyed its agents, she could not ignore the contract by fire the liability of the defendant was and sue on the policy; but if she had been disputed, and that a compromise had been misled or induced to enter into the comproagreed upon between the plaintiff and de- mise by the fraudulent representations of the fendant, and a settlement agreed upon by defendant or its agents, then she could ignore which the defendant was to pay the plaintiff the contract of compromise, and sue on the $500 in full satisfaction of said policy, and policy. If the compromise was procured by the defendant had paid said sum, and the fraud on the part of the defendant, she could plaintiff had accepted the same, and receipted rescind the contract of settlement by restorto the company in full, and surrendered the ing, or offering to restore, what she had repolicy. The plaintiff replied to the answer ceived as a consideration; but if she had not by denial. It clearly appears from the evi- been misled and deceived, and settled with dence that such settlement was had, and the full knowledge of all the facts, and there was money paid by defendant and accepted by the an honest dispute as to the liability of the plaintiff in full of the amount due. The company, based

The company, based upon reasonable grounds, court charged the jury on this issue in the then she would be bound by her contract of

settlement, and could not as of right even were they fellow-servants? If they were, rescind it. For this error the judgment there can be no recovery against the master must be reversed. Judgment reversed, at for injuries caused by the negligence of the costs of appellee.

co-employe. Drinkout v. Machine Works, 90

Ind. 423; Coal Co. y. Cain, 98 Ind. 282; (121 Ind. 124)

Car Co. v. Parker, supra; Railway Co. v. TAYLOR V. EVANSVILLE & T. v. R. Co.

Adams, 105 Ind. 151, 5 N. E. Rep. 187; Mc(Supreme Court of Indiana. Nov. 21, 1889.) Cosker v. Railroad Co., 84 N. Y. 77; Crispin FELLOW-SERVANTS.

v. Babbitt, 81 N. Y. 516; Moore v. Railroad Where the master mechanic in a railroad Co., 21 Amer. & Eng. R. Cas. 509. company's shops, who has full authority over the

If Torrence was acting in the capacity of a men, machinery, and work, and who is the only representative of the company there at the time, co-employe at the time his negligence caused orders a workman to disconnect the equalizer of the appellant's injury, this action cannot be one of the locomotives, and, while the workman is maintained, although he was the appellant's engaged in so doing under the directions of the master mechanic, the latter negligently moves the superior, and had the right to retain or disequalizer so that it falls upon and severely injures charge him. An agent of high rank may be, the workman, he will not be considered a fellow at the time an act is done, the fellow-servant servant, so as to relieve the company from liability. of another employe, occupying a subordinate

Appeal from superior court, Vanderburgh position. Hussey v. Coger, 112 N. Y. 614, county; AzRo DYER, Judge.

20 N. E. Rep. 556. If, for instance, the genAction by James Taylor against the Evans- eral superintendent should take hold of one ville & Terre Haute Railroad Company for end of an iron rail to assist an employe of the damages for personal injuries. Demurrer to company in loading it on the car, he would the complaint was sustained, and plaintiff ap- be, as to that single act, a fellow-employe, alpeals.

though as to other acts he might be the repBrownlee & Gudgel, for appellant. John resentative of the master. Where, however, E. Iglehart and Edwin Taylor, for appellee. the agent whose negligence caused the injury

is at the time in the master's place, then he ELLIOTT, C. J. The appellant was a ma

The appellant was a ma- is not a co-employe, but a representative of chinist in the service of the appellee, engaged the employer. "His breach of duty is then the in work in its shops in the city of Evansville, employer's wrong, for in such cases the act of under the control of its master mechanic, the representative is the act of the principal. John Torrence. The master mechanic had By whatever name the position which the the entire control of the shop, of all the em- agent occupies may be called, he is the repployes therein, and of all work. He had full resentative of the master, if his duties are authority to employ and discharge the ma- those of the master; but, if his duties are not chinists and workmen, and he had authority those of the master, then he is no more than to select and to change machinery. On the a fellow-employe with those engaged in the 21st day of April, 1884, the appellee desired to common service, no matter what may be his inspect the head of the equalizer on one of its nominal rank. Car Co. v. Parker, supra; locomotives for the purpose of ascertaining Pennsylvania Co. v. Whitcomb, 111 Ind. 212, whether the key could be changed, and its 12 N. E. Rep. 380; Krueger v. Railroad Co., master mechanic ordered the appellant to 111 Ind. 51, 11 N. E. Rep. 957; Railway Co. disconnect the equalizer, and remove it from v. Watson, 114 Ind, 20, 14 N. E. Rep. 721, its place, in order to enable the master-me- and 15 N. E. Rep. 824; Railway Co. v. Sandchanic to examine it. While the appeilant ford, 117 Ind. 265, 19 N. E. Rep. 770; Railwas engaged in the work of removing the key way Co. v. Lang, 118 Ind. 579, 21 N. E. Rep. of the equalizer, under the master mechanic's 317; Franklin v. Railroad Co., 37 Minn. 409, direction, the equalizer was negligently pulled 34 N. W. Rep. 898; Anderson v. Bennett, 16 out of its place by the master mechanic, and Or. 515, 19 Pac. Rep. 765, Railroad Co. v. it fell upon the appellant, and very severely McKee, 37 Kan. 592, 15 Pac. Rep. 484; Guninjured him. The equalizer was a piece of ter v. Manufacturing Co., 18 s. C. 262. iron weighing 200 pounds, and it was caused Our judgment is that, at the time the apto fall upon the appellant by the negligence pellant was injured, Torrence, the master of the master mechanic, and without any mechanic, was performing the master's duty, fault on the appellant's part.

and not merely the duty of a fellow-servant. It is established law in this jurisdiction He was in control of the shop where the apthat the common master is not responsible to pellant was working. He was the only repan employe for an injury caused by the neg- resentative of the master at that place. Men, ligence of a co-employe. From this rule, so machinery, and work were under his control. long settled, we cannot depart. Railroad Co. He gave the orders which it was the duty of v. Dailey, 110 Ind. 75, 10 N. E. Rep. 631; those under him to obey, and he alone could Capper v. Railroad Co., 103 Ind. 305, 2 N. E. give orders as the master's representative. Rep. 749; Car Co. v. Parker, 100 Ind. 181; Bo- He gave the specific order under which the gard v. Railroad Co., Id. 491; Engine Works appellant acted. He did not join the appelv. Randall, Id. 293. It is also settled that the lant as a fellow-servant in doing the work, fact that the one employe is the superior of but he commanded it to be done. He was in the other makes no difference, for the ques- the position of one exercising authority, and tion is not one of rank. The question is, . not in that of one engaged, in common with

another, in the same line of service. The ob- | but was, although a superior agent, engaged ligation to make safe the working-place and in doing the same general work as that for the materials with which the work is done which the appellant was employed, it would rests on the master, and he cannot escape it be different. As the facts appear in the recby delegating his authority to an agent. It ord, the master had invested the master meis also the master's duty to do no negligent act chanic with full authority over the appellant that will augment the dangers of the service. and all others employed in the shop under In this instance Torrence was doing what the his control; thus bringing the case within master usually and properly does when pres- the decision in the case of Engine-Works v, ent in person, for he was commanding, and Randall, 100 Ind. 293, where it was said: directing the execution of what he had com- “If the agent or servant upon whom the manded. By his own act he made it unsafe power to command is given exercises the to do what he had commanded should be done. power, and fails to discharge the obligation, Acts of the master were therefore done by to the hurt of the servant, who is without one having authority to perform them, and fault, the failure is that of the master, and the breach of duty was that of one who stood he must respond.” In the case now at our in the master's place. It is not easy to con- bar, the agent who had the power to comceive how it can be justly asserted that one mand, and who exercised it, himself violated who commands an act to be done, and who the duty which rested upon him as the reppossesses the authority to command and en- resentative of his principal, and by his own force obedience from all servants employed in act of negligence brought injury upon the a distinct department, by virtue of the power employe engaged in doing the work he was delegated to him by the master, is no more ordered to do. Although the case of Hawthan a fellow-servant; for, in the absence of kins v. Johnson, 105 Ind. 29, 4 N. E. Rep. the master, the command, if entitled to obedi. 172, belongs to a somewhat different class ence, must be that of the master, conveyed from the one to which this class belongs, still through the medium of an agent. Nor can what is there said as to the right of an emit be held, without infringing the principles ploye to obey the directions of a superior is of natural justice, that, if he who is author-applicable here, and strongly tends to support ized to give the command makes its execution our conclusion. What we have said of Hawunsafe, the employe whose duty it is to obey kins v. Johnson applies also to the case of has no remedy for an injury received while Rogers v. Overton, 87 Ind. 410. Many of doing what he was commanded to do. Nor the cases go much further than we do here, do the better reasoned authorities justify for they assert that an employe is justified in such a conclusion. The decisions are con- obeying the orders of one who has a right to flicting, it is true, but the decided weight of command, unless the danger of obedience is authority is that, where the act is such as the so apparent that a reasonably prudent man master should perform, he is liable, no mat- would not assume the risk. Stephens v. ter by whom the duty is performed. “As to Railroad Co., 96 Mo. 207, 9 S. W. Rep. 589; such acts,” said the court in Flike v. Railroad Huhn v. Railroad Co., 92 Mo. 443, 4 S. W. Co., 53 N. Y. 553, “the agent occupies the Rep. 937; Keegan v. Kavanaugh, 62 Mo. 230. place of the corporation, aixi the latter should Whether these decisions go beyond the true be deemed present, and consequently liable line or not we neither inquire nor decide, but for the manner in which they are performed.” we do attirm that the reasoning, in so far as

In this instance Torrence was not a fellow- it covers and is limited to a case such as this, servant while engaged in commanding work is unanswerable; for here the master meto be done, and directing the execution of the chanic had the right to command, and he command, although if it had appeared that was the only person in the shop who could he was engaged with the appellant in doing rightfully command, the employes serving the work, within the line of the latter's serv- under him. The duty of the master mechanices, it might perhaps be otherwise. “The ic, as it appears from the complaint, was to true test,” said the court in Gunter v. Man- order what should be done; and this, it has ufacturing Co., supra, “is whether the per- been weil decided, is intrinsically the masson in question is employed to do any of the ter's act, and not that of a mere fellow-servduties of the master. If so, then he cannot be ant. Theleman v. Moeller, 73 Iowa, 108, 34 regarded as a fellow-servant,

but N. W. Rep. 765; Brann v. Railroad Co., 53 is the representative of the master, and any Iowa, 595, 6 N. W. Rep. 5. We do not afnegligence on his part in the performance of firm that an employe, with authority to comthe duty of the master thus delegated to him mand, may not be a fellow-servant. On the must be regarded as the negligence of the contrary, we hold that one having authority master.” The rule thus stated goes further to command may still be a fellow-servant; than we are required to do in this instance; but we hold, also, that where the position is for we need go no further than to hold that such as to invest the employe with sole charge while engaged in ordering the work to be of a branch or department of the employer's done, and in supervising its performance, business, the employe, as to that branch or the master mechanic represented his princi- department, may be deemed a vice-principal, pal.' If, however, it had appeared that the while engaged in giving orders or directing master mechanic was not the person in charge their execution. Railroad Co. v. Hoyt, 122 Ill. of the men, and the shop and its equipments, 369, 12 N. E. Rep. 225; Railroad Co. v. Hawk,

121 Ill. 259, 12 N. E. Rep. 253. "Where,” that the employe assumes all the risks inciit is said in a well-considered case, "a master dent to the service he enters; but we assert places the entire charge of his business, or a that the rule does not apply where a superior distinct department of it, in the hands of an agent, representing the master, orders the agent, exercising no discretion and no over-employe to do a designated act, and, while sight of his own, it is manifest that the neg- the employe is engaged in doing what he was lect of the agent of ordinary care, in supply- specially ordered to do, that superior, by an ing and maintaining suitable instrumentali- act of negligence, causes the employe to reties for the work required to be done, is a ceive an injury. The employe in entering breach of duty for which the master should the service does not assume a risk created by be held liable.” Cooper v. Railroad Co., 24 the negligent act of the master's representaW.Va. 37. Substantially the same statement tive in making unsafe work which he specifof the rule is made in Mullan v. Steam- ically orders the employe to perform. If the Ship Co., 78 Pa. St. 25. This rule applies to master mechanic had been no more than a the case made by the complaint before us, co-employe working with the appellant, or if and it is that case, and that alone, to which the appellant had entered the service knowour discussion is directed, and to which our ing that the master mechanic was to work conclusions apply. If it appeared that the with him, then he would be held to have asmaster mechanic worked with the machinists sumed the risk arising from the master mein the shop as a foreman or a like agent or-chanic's negligence while working or acting dinarily does, we should have a different case. merely in the capacity of a fellow-servant. This, however, does not appear; for, on the We hold that the facts stated in the comcontrary, it does appear that the master me plaint are sufficient to compel the appellee to chanic was invested with sole control of the answer. Judgment reversed. shop, ani that his duties were not those of a mere workman, but those of one whose duty

(121 Ind. 154) it was to manage a distinct department, and SCHIPPER V. CITY OF AURORA. to give orders to the machinists and other

(Supreme Court of Indiana. Nov. 22, 1889.) employes as to the duties they should perform.

MUNICIPAL CORPORATIONS-ULTRA VIRES. We cannot further comment upon the decis

Where a city obtains the right to construct ions on this branch of the case which we have a gutter over private land, down the bank of the examined, but refer without comment to river on which it is situated, and thereupon without some of them. Hough v. Railroad Co., 100 authority leases the ground acquired to the plaintiff, U.S. 213; Ford v. Railroad Co., 110 Mass. dition that he fill in on either side of the gutter,

to be used by him for a private landing, on the con240; Wilson v. Linen Co., 50 Conn. 433; and he incurs expense in filling in the gutter as Mayhew v. Mining Co., 76 Me. 100; Railroad far as it is built, but the city changes its plan, and Co. v. McKee, 37 Kan. 592, 15 Pac. Rep. 484; abandons it, so that the land cannot be used for a

landing, the plaintiff, while not entitled to damRailroad v. Peregoy, 36 Kan. 424, 14 Pac. ages against the city for breach of contract, may Rep. 7; Trust Co. v. Railroad Co., 32 Fed. recover for the work he has done which has inured Rep. 448.

to the city's benefit. It is important to bear in mind that the

Appeal from circuit court, Dearborn counappellant was performing a special duty en-ty; WILLIAM H. BAINBRIDGE, Judge. joined upon him by a superior whom it was

Roberts & Stapp, for appellant. Holman his duty to obey. Although the work was & Holman, for appellee. within the general scope of his service, nevertheless he was performing it under a spe MITCHELL, J. Bernard Schipper brought cial order. It was therefore a wrong on the this suit to recover damages for the breach part of the agent, having the right to order of a contract made by him with the city of him to do the specitic work, to increase the Aurora, and to recover for work done under peril of the service by bis own negligence. the contract. The court sustained a demurThe employe, acting under the specific order, rer to the complaint, and the propriety of this had a right to assume, in the absence of ruling is the only question presented on this warning or notice, that his superior who gave appeal. It appears that Litinary street, in the order would not, by his own negligence, the city of Aurora, terminates at the top of make the work insafe. Railroad Co. v. the north bank of the Ohio river, and that, in Lang, 118 Ind. 579, 21 N. E. Rep. 317; order to carry the surface water which colCoombs v. Cordage Co., 102 Mass. 572; Haley lected on that and other streets from the top v. Case, 142 Mass. 316, 7 N. E. Rep. 877; of the bank at the south end of the street Goodfellow v. Railroad Co., 106 Mass. 461; down to the surface of the water in the river, Crowley v. Railway Co., 65 Iowa, 658, 20 N. at luw-water mark, so as to prevent the washW. Rep. 467, and 22 N. W. Rep. 918; Abel ing out of the bank, the city authorities, in v. Canal Co., 103 N. Y. 581, 9 N. E. Rep. the year 1873, determined to construct a 325; Reagan v. Railroad Co., 93 Mo. 348, stone gutter of suitable width, on a line with 6 S. W. Rep. 371; Lewis v. Seifert, 116 Pa. the extension of the center of the street down St. 628, 11 Atl. Rep. 514. We adhere firmly the slope of the bank,-a distance of 250 feet. to the rule declared in such cases as Railway In order to carry its plans into execution, the Co. v. Watson, 114 Ind. 20, 14 N. E. Rep. city obtained a grant from James W. Gaff, 721, and 15 N. E. Rep. 824, and Railway Co. who owned the land constituting the bank v. Sandford, 117 Ind. 265, 19. N. E. Rep. 770, of the river, by which it became authorized

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