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void for want of jurisdiction. In re Clarke, | of the marital relation may furnish very 12 Cush. 320. substantial reasons for the appointment of [1-7] The original and exclusive jurisdic- a guardian to protect and preserve his estate. tion of the superior court over divorce causes, | Miles v. Boyden, 3 Pick. 213, 216. But the and the care, support and custody of minor child was not a party to the suit for divorce. children of the parties is conferred by R. L. The decree went no further than to adjudic. 152. By sections 25-28 the court can pro- cate the parental rights of the former husvide, pending the proceedings and after di- band and wife as between themselves, and vorce, for their maintenance and custody. It custody was conditioned to both lives, with may give the custody, if the welfare of the the obligation imposed on the father to prochildren will be promoted, to the mother, vide for the child's support. The liability for even if she is the party in fault, or to the payment of alimony ceased with his death, parents jointly for stated periods, or to a although his executor or the administrator third person. R. L. c. 152, § 28; Oliver v. of his estate ordinarily could be held for Oliver, 151 Mass. 349, 24 N. E. 51; Hill v. accrued arrears. Knapp v. Knapp, 134 Mass. Hill, 196 Mass. 509, 82 N. E. 690; Chetwynd | 353, 355; McIlroy v. McIlroy, 208 Mass. 458, v. Chetwynd, 4 Swab. & Tr. 151; Chetwynd 464, 94 N. E. 696, Ann. Cas. 1912A, 934; Wells v. Chetwynd, L. R. 1 P. & D. 39; Goodrich v. Wells, 209 Mass. 282, 289, 95 N. E. 845, 35 v. Goodrich, L. R. 3 P. & D. 134. It may al- L. R. A. (N. S.) 561. The provisions for cusso, under section 29, if the course of proceed-tody also were abated or expired by limitaing is not specially prescribed, hear and determine all matters within the purview of the statute according to the proceedings in ecclesiastical courts and courts of equity. If the original decree contains no provisions for custody or maintenance the court, on the petition of either parent, under section 25, can enter a new decree, or modify a former decree, as the circumstances of the parents and the welfare of the children may require. Hill v. Hill, 196 Mass. 509, 82 N. E. 690. And where the parents become unfitted for the trust, third persons by petition may intervene in behalf of the children. Chetwynd v. Chetwynd, 4 Swab. & Tr. 151. If the wife is given the sole custody with no provisions for their support, her remedy is to apply for a modification of the decree which will include maintenance; and where an order is not made, a suit against her former husband to recover such expenses cannot be maintained. Brow v. Brightman, 136 Mass. 187. Compare Spencer v. Spencer, 97 Minn. 56, 105 N. W. 483, 2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695, 7 Ann. Cas. 901. The decree entered before the proceedings for guardianship were begun was decisive of the rights of the parents to the custody of their minor child so long as it continued in force. Hill v. Hill, 196 Mass. 509, 82 N. E. 690; Morrill v. Morrill, 83 Conn. 479, 77 Atl. 1; Joab v. Sheets, 99 Ind. 328; Wilkinson v. Deming, 80 Ill. 342, 22 Am. Rep. 192; Hill v. Hill, 49 Md. 450, 456, 457, 33 Am. Rep. 271; Snover v. Snover, 10 N. J. Eq. 261, 262; Hoffman v. Hoffman, 15 Ohio St. 427, 436. See R. L. c. 153, § 37; chapter 162, § 4. It would not prevent, however, the appointment of a guardian who should have the supervision and care of the minor's estate. R. L. c. 145, § 1. The divorce court is not given authority to appoint a guardian who shall have charge of the property of the children and they are not wards of the court.

tion. Rawson v. Rawson, 156 Mass. 578, 580, 31 N. E. 653; In re Blackburn, 41 Mo. App. 622; Davis v. Davis, L. R. 14, P. Div. 162. And the natural rights at common law of the petitioner are only those of a surviving parent. Worcester v. Marchant, 14 Pick. 510; Horgan v. Pacific Mills, 158 Mass. 402, 405, 33 N. E. 581, 35 Am. St. Rep. 504. Or, in other words, when the custody of the father terminated, the correlative right of the petitioner under the decree ceased. The court of probate, under R. L. c. 145, § 4, as amended by St. 1902, c. 474, and St. 1904, c. 163, may give the custody of a minor to the guardian if it deems the surviving parent unfitted for the trust. The predominant purpose of the statute is the good of the child, and in making the decree, the court did not transcend its jurisdic tion. Dumain v. Gwynn, 10 Allen, 270, 272. But the petition should not be dismissed. The petitioner duly appealed, and the appeal is now pending. While the decree has not been vacated the authority of the guardian is suspended, and all action under it is void unless the decree is affirmed. R. L. c. 162, § 16; Daley v. Francis, 153 Mass. 8, 26 N. E. 132; Tyndale v. Stanwood, 186 Mass. 59, 61, 71 N. E. 83; Id., 190 Mass. 513, 77 N. E. 481. We assume that where the question of the proper custody of a child not yet eight years of age, unable to determine for himself with whom he will abide is involved between the surviving parent and a probate guardian appointed under a decree from which an appeal has been regularly taken and is undetermined, the power of this court on habeas corpus, which is also the appellate tribunal, to hear and decide in the exercise of a sound judicial discretion to whom custody during the controversy shall be given is paramount. Com. v. Hammond, 10 Pick. 274; Curtis v. Curtis, 5 Gray, 535, 537; Woodworth v. Spring, 4 Allen, 321, 325. By the terms of the report the case is to stand for further

[8-11] The rights of a minor born in wed-hearing before a single justice after the aplock to real or personal property do not depend upon the continuance of the matrimonial

peal has been disposed of, and the order entered in the county court as to custody is to

c. 191, § 14; King's Case, 161 Mass. 46, 36 | constructed "to remove any waste water that N. E. 685; Seller's Case, 186 Mass. 301, 71 N. E. 542. See Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Clarke, 100 U. S. 404, 25 L. Ed. 715.

So ordered.

(219 Mass. 91) BURNETT

came from the exhaust pipe of the Corliss engine." This water in these pits was removed by an ejector, or suction pump.

The plaintiff was in the defendant's employ from March, 1911, until he was injured in May, 1912. He testified that when he first began to work, the flooring in the engine

V. WORCESTER BREWING room had been removed and a new floor laid

CORPORATION.

in February or March, 1912, and that a trap

(Supreme Judicial Court of Massachusetts. door was then placed in the floor over each

Worcester. Oct. 23, 1914.)

1. APPEAL AND ERROR (§ 930*)-VERDICT— CONFLICTING EVIDENCE.

Where the jury found for plaintiff on conflicting evidence, it presumably believed the plaintiff, and the court on appeal must consider the exceptions in the aspect of the testimony most favorable to him.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3755-3761; Dec. Dig. 8

930.*]

2. MASTER AND SERVANT (§ 121*)-MASTER'S

NEGLIGENCE-PLACE FOR WORK.

Where plaintiff, an engineer, injured by stepping into a pit in the floor of the engine room constructed to remove water from the exhaust pipe, the trapdoor to which had been left open by a plumber's employés, was familiar with the doors, knew where they were located, that if the pipe in the pit became worn out or clogged the only means of access was by opening the doors, that the only way to determine the amount of water was by opening them, and that they would be opened whenever occasion required, although he did not know the precise moment when they would be opened, there was no actionable negligence on the part of the defendant. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. 121.*]

Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge.

Action by William Burnett against the Worcester Brewing Corporation. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment to be entered for defendant under St. 1909, c. 236.

E. H. Vaughan, Edward T. Esty, and Jay Clark, Jr., all of Worcester, for plaintiff. T. Hovey Gage, Frank F. Dresser, and Daniel W. Lincoln, all of Worcester, for defendant.

CROSBY, J. The plaintiff, while in the defendant's employ as a stationary steam engineer, was injured by stepping into a pit in the floor of the engine room.

There were four engineers in all employed by the defendant, three of whom were known as "watch engineers," the plaintiff being one of them, and one chief engineer. The plaintiff worked eight hours a day, seven days a week, and he worked on the night shift for two weeks at a time. At the time of the accident he was working on the night shift from 11 o'clock at night until 7 o'clock in the morning. There were two pits under the floor in the engine room, opening into each of which was a trapdoor. These pits were

[blocks in formation]

The jury returned a verdict for the plain. tiff, and the court asked them this question: "Did you find that the trapdoor was left open by an employé of the company or the plumber's employés?" The foreman replied: "Plumber's employés."

The jury could have found that it was necessary for the plaintiff to pass over the trapdoor of this pit in order to reach the engine.

O'Malley, a witness called by the plaintiff, and one of the three watch engineers, tes§tified that when he came on duty at 3 o'clock that day the trapdoor was open and he left He further testified on cross-examit open. ination that the doors of the pit into which the plaintiff fell "were lifted up to see the height of the water; that it was not required to be open very often; that it might be opened once a week and might be opened two or three times a day, the frequency depending a good deal upon the flow from the exhaust."

There was other evidence to show that this

trapdoor was opened frequently. The plaintiff, however, testified that he never had seen it open before the accident, and that the purposes of this trapdoor were two: "In case the pipe got clogged up or got worn out to take it out and put in another one."

[1, 2] In view of this conflicting evidence, "as the jury presumably believed the plaintiff, we must consider the exceptions in the aspect of the testimony which is most favorable to him." Falardeau v. Hoar, 192 Mass. 263, 266, 78 N. E. 456. If for the purposes of this decision we assume in favor of the plaintiff that the question of his due care was for the jury, and that he did not assume the risk of the injury which he received as matter of law the question whether the defendant was negligent remains.

This is a close question, but we are of opinion that its determination is governed

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Exceptions sustained; judgment to be entered for the defendant under St. 1909, c. 236.

TO.

by the case of Young v. Miller, 167 Mass. 224, 45 N. E. 628. In that case as in this, it was not disputed that the plaintiff was familiar with the trapdoors, knew where they were located, and also knew that they were like(218 Mass. 595) ly to be opened from time to time. In the MCCANN v. CENTRAL CONST. CO. case at bar the plaintiff knew that if the (Supreme Judicial Court of Massachusetts. pipe in the pit became worn out or clogged Suffolk. Oct. 23, 1914.) up it would be necessary to make such re- 1. TRIAL (§ 169*)-Directed VERDICT-RIGHT pairs as were needed, and that the only means of access to the pipe was by opening this door. He also knew that the only way of determining the amount of water was by opening the door. While he testified that the pipe probably would not rust out until the end of four or five years, and would not become clogged up for a long time, yet it is plain that from time to time, with more or less frequency, the pipe would become clogged or worn and would need to be cleaned out or replaced.

If it became necessary to clean or repair the pipe more frequently than the plaintiff understood was necessary, this fact would not be evidence of negligence, or distinguish the case from Young v. Miller, 167 Mass. 224, 45 N. E. 628, for it is apparent that he must have known that the door would be opened whenever occasion required, although he did not know the precise moment when it would be so opened. As was said by this court in Young v. Miller (167 Mass. 225, 45 N. E. 629): "The plaintiff knew the permanent elements of the danger to which he was exposed. He knew that the trapdoors were where they were, and that they were likely to be opened from time to time. The only thing he did not know was the precise moment when the doors would be raised, but that he could find out if he looked. A majority of the court are of opinion * that the defendant's duty did not extend to giving notice or warning that the doors would be open to one who knew that they were liable to be so at any time."

The fact that in the case of Young v. Miller the plaintiff fell into the pit during the noon hour, at which time he was not called upon to work, did not in our opinion affect the decision of that case, as it is not referred to as a reason for the conclusion reached.

All of the cases relied on by the plaintiff are cases where the plaintiff had no previous knowledge of the existence of the trapdoor, or did not know it was to be used at the time of the plaintiff's injuries.

This case is to be distinguished from such cases as Foley v. J. R. Whipple Co., 214 Mass. 499, 102 N. E. 84; Falardeau v. Hoar, 192 Mass. 263, 78 N. E. 456; Johnson v. Field-Thurber Co., 171 Mass. 481, 51 N. E. 18; Hogarth v. Pocasset Manuf. Co., 167 Mass. 225, 45 N. E. 629; Dolphin v. Plumley, 167 Mass. 167, 45 N. E. 87. See, also, Horrigan v. Boston Elevated Railway, 190 Mass. 577, 77 N. E. 634.

It follows that the ruling requested by the defendant that the plaintiff is not entitled to recover should have been given.

Where the acts of negligence alleged in the there was no motion to amend, verdict should be declaration were unsupported by any proof, and directed for defendant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 341, 381-387, 389; Dec. Dig. § 169.*] 2. MASTER AND SERVANT (8 107*)-INJURIES TO SERVANT-NEGLIGENCE OF MASTER. Where defendant directed plaintiff, an experienced teamster, to drag a flagstone with his team, and plaintiff was struck by the stone while he was walking between it and the team, defendant is not negligent in failing to furnish him hind the stone, for defendant was justified in bewith extension reins, so that he could walk believing that plaintiff would walk beside the team, where he would be perfectly safe.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*] 3. MASTER AND SErvant (§ 88*)—INJURIES TO

SERVANT-APPLIANCES.

Where plaintiff, who was a servant of a teaming contractor, was directed by the contrac tor to take a team and work under the direction of defendant, defendant is not bound to furnish him with extension reins, for such appliances should be furnished by plaintiff's own master.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. { 88.*]

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Action by Edward McCann against the Central Construction Company. There was a verdict for plaintiff, and defendant excepted. Judgment for defendant.

Daniel H. Coakley and John G. Walsh, both of Boston, for plaintiff. Edward I. Taylor, of Boston, and J. W. Britton, of Hartford, Conn., for defendant.

DE COURCY, J. The defendant corporation was engaged in repaving and repairing Hancock street in the Dorchester district of Boston, and procured some teams and drivers from Edward Burns, a teaming contractor, to use in connection with its work. Burns had sent his employé, McCann, with a pair of horses, to report to the defendant's fore man, Condry. After taking a load of macadam or gravel to the dump, the plaintiff was directed by Condry to take the horses from the wagon, hitch them to a lead bar, and drag a flagstone that was about 6 feet long and 3 feet wide, from its position on the crosswalk to a place about 40 feet distant. [1] This lead bar was a piece of timber 4 or 5 feet long, with a whiffletree at each end, to which a horse was hitched. On the other side of the bar, and attached to its ends, was

lessness, plaintiff was injured in a collision between the automobile and the carriage in which could not be held liable for any injury resulting plaintiff was riding. Held that, while defendant from T.'s carelessness, if he merely lent the automobile to T., or to the women for their own for a purpose in which he had no interest, and while the case was close to the line, it was a question for the jury whether he did not impliedly empower T. as his representative to take the car for the purpose of gratifying the tion to return soon showed that the relation of wishes of his guests, especially as his admonihost and guest had not ended.

a chain which extended towards the stone to be dragged; the bar and chain forming a triangle, at the apex of which was a ring. Another chain was fastened around the stone and hooked to the ring. The plaintiff walked between the horses and the stone while driv-pleasure or business, or permitted them to use it ing, and had gone but a short distance when the stone struck his foot and injured him. [2, 3] The defendant requested the court to rule that upon all the evidence and pleadings the plaintiff was not entitled to recover. This request should have been given. The declaration alleged only that through the negligence of the defendant "said stone became detached from its chain and rolled onto the plaintiff's foot." There was no evidence to support this allegation, or to show that the chain was defective or was imperfectly fastened to the stone; and no motion to amend the declaration was made. It is now argued that the defendant's foreman, Condry, was negligent in ordering the plain

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. § 332.*]

Exceptions from Superior Court, Middlesex County; Lloyd E. White, Judge.

Action by Harry W. Campbell against Edward W. Arnold for injuries sustained in a collision between defendant's automobile and the carriage in which plaintiff was riding. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Clarence W. Rowley and Daniel J. Kiley, both of Boston, for plaintiff. Wm. J. Coughlan and Daniel R. Coughlan, both of Abington, for defendant.

tiff to do this work without extension reins. Even assuming that this contention is open to the plaintiff, in our opinion it cannot prevail. The plaintiff was a teamster with an experience of more than 25 years, and was familiar with this kind of work. Condry had no reason to assume that he needed any instruction in carrying out the order to move RUGG, C. J. The undisputed evidence the stone, even though he used ordinary showed that on a May afternoon the defendreins. It is perfectly apparent from the evi-ant entertained at his summer cottage two dence that he might have walked alongside women and two men as his guests. The the horses in a place of safety; and Condry women urged him to take them out in his well might assume that he would do so in- automobile, but he did not want them to go stead of walking directly in front of a stone and during most of the afternoon refused to that was being jolted over the rough ground. yield to their request. They "kept teasing" And it is to be noted that if the plaintiff him and did "quite a little coaxing" and finalhad wanted extension reins he should have ly he said in substance: "Well, you can go brought them with him, as his employer if you want to, but don't be gone long;" at Burns, and not the defendant, was the one the same time taking from his pocket and who would furnish them. White v. Wells throwing down the key with which to unlock Brothers Co. of New York, 214 Mass. 444, 101 the switch of his automobile. A man named N. E. 1089. Thompson was one of the guests. He had been employed by the firm of which the defendant was a member until a day or two before the occasion in question, and held a chauffeur's license and knew how to operate the defendant's automobile. The defendant testified that he produced the keys and, throwing them down, said: "There, go on and go, but I don't want you to go at that;" that he supposed he knew that Thompson was going to drive the car and thought he would "drive those girls around a little way and bring them back." He denied that Thompson went on any mission of his or was sent by him to take the women out for a ride. The key was used and Thompson prepared the automobile, which was near by, for starting and drove off on a pleasure ride with the woman

As there was no evidence of negligence on the part of the defendant, it is unnecessary to consider the questions of the plaintiff's due care and assumption of risk. Under the provisions of St. 1909, c. 236, § 1, the entry must be:

Judgment for the defendant.

(219 Mass. 160)

CAMPBELL v. ARNOLD. (Supreme Judicial Court of Massachusetts. Middlesex. Oct. 24, 1914.) MASTER AND SERVANT (§ 332*)—INJURIES TO THIRD PERSONS-QUESTIONS FOR JURY. Defendant was the owner of an automobile, and was asked by women visiting his summer cottage to take them out in the automobile, but at first refused to do so. After considerable urging, he took from his pocket the key to the in the defendant's presence. There was amswitch of the automobile, and, throwing it down, said they could go, but not to be gone long. T., who held a chauffeur's license and knew how to operate defendant's automobile, was also a guest, and defendant knew that T. If the defendant merely lent his automobile was going to drive the car. Through T.'s care- to Thompson or the women for their own *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ple evidence of carelessness on the part of Thompson in driving the car, whereby injury to the plaintiff resulted.

Al

was important, or that defendant desired further cross-examination on that point, the limitation of the cross-examination was not reversible

error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4140 4145, 4151, 41584160; Dec. Dig. § 1048.*]

Exceptions from Superior Court, Worcester County; Robert F. Raymond, Judge.

Action by Minnie I. Ginns against the C. T. Sherer Company. Verdict for plaintiff, and defendant excepts. Exceptions over

ruled.

pleasure or business, or permitted them to use it for a purpose in which he had no interest, plainly he could not be held liable for any injury resulting from carelessness in its operation. Herlihy v. Smith, 116 Mass. 265. The defendant can be held liable only on the ground that there was sufficient evidence to support a finding that Thompson was acting as the defendant's agent at the time. though the case is close to the line, there are circumstances enough to require the submission of that question to the jury. The women were the guests of the defendant at his house by his invitation for a week-end party. He yielded to their importunities, addressed directly to him, that they should be given a ride. There was evidence that the relation of host and guest did not end with their departure, for it might have been found that the defendant's parting admonition to them was that they should return soon. His consent for the use of the car was based, not on anything said by Thompson, but it is mani-ing hats. This main aisle was 3 or 3% feet fest that he knew that the car could be driven only by Thompson, whom he knew to be licensed therefor and who had been in the employ of his firm until within a day or

two. His conduct in delivering the key, by which alone the automobile could be started,

under all the circumstances disclosed would

support a finding that, notwithstanding his
protestations of reluctance and without ex-
press authority, the defendant nevertheless
impliedly empowered Thompson as his rep-
resentative to take his car for the purpose
of gratifying the desires of his women guests
for an automobile ride. Bourne v. Whitman,
209 Mass. 155, 173, 95 N. E. 404, 35 L. R.
A. (N. S.) 701.
Exceptions overruled.

(219 Mass. 18)

GINNS v. C. T. SHERER CO. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 23, 1914.)

1. NEGLIGENCE (§ 136*)-PERSONAL INJURYQUESTION FOR JURY.

In an action for injury in defendant's department store, the question whether the obstruction of a passageway by a hat box 19 inches wide and 9 inches high, left there for half an hour or more, was a failure to exercise reasonable care to keep the premises safe for use by invited customers, was for the jury.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 2. NEGLIGENCE (§ 136*)-PERSONAL INJURYDUE CARE.

On evidence in such action, held, that the question whether the plaintiff was in the exercise of due care when she fell over the box was for the jury.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 3. APPEAL AND ERROR (§ 1048*)-HARMLESS ERROR-CROSS-EXAMINATION.

When the court asked counsel if he was not taking a good deal of time in cross-examination as to a variation in testimony of a couple of minutes, to which counsel replied that it might become important, and where no suggestion was afterwards made that the exact time

Rufus B. Dodge, Wm. J. Taft, Simon G. Friedman, and Timo. F. Larkin, all of Worcester, for plaintiff. Arthur J. Young, of Boston, for defendant.

DE COURCY, J. [1] In the millinery department of the defendant's store there was a passageway, on each side of which was a series of counters or tables used for display

wide at the place of the accident. It could be found on the evidence that the aisle was obstructed there by a hat box which was about 19 inches in width and 9 inches in

height, and which had been left there for of the department testified that it was her duty to see that there were no boxes in the aisle, and that "it was against the rules and it would be dangerous to allow them." It was for the jury to say whether this obstruc tion of a much frequented passageway was allowed to exist for so unreasonable a length of time as to constitute a violation of the duty which the defendant owed to the customers invited to its place of business; in other words, whether it failed to exercise reasonable care to keep the premises safe for use according to its invitation. Hendricken v. Meadows, 154 Mass. 599, 28 N. E. 1054; McDermott v. Sallaway, 198 Mass. 517, 85 N. E. 422, 21 L. R. A. (N. S.) 456.

half an hour or more. The woman in charge

[2] It could not be ruled as matter of law that the plaintiff was not in the exercise of due care when she fell over the box. The jury might consider that she was not bound to anticipate that this temporary obstruction would be allowed to remain in the aisle for the substantial length of time that elapsed after she had first noticed it. And the fact that she was walking behind the clerk and looking at her, and so failed to see the box just before she fell, might be found to be consistent with the standard of care by which a minor of her age must be judged. The fact that she was not thinking of the box at that particular time is not conclusive as to her want of care. George v. Haverhill, 110 Mass. 506; Marston v. Reynolds, 211 Mass. 590, 98 N. E. 601.

[3] It is urged that the court erred in limiting the cross-examination of the plaintiff, because it was important to show that she did not reach the store until a short time before the accident, and hence could not

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