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STANDARD MFG. CO. v. HUDSON.

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Oras IT tes filled more than 90 days after

in appellant's brief leveled against the record proper in this case. The only reasons which he urges for reversal of the judgment

are matters of exception contained in the bill tre bat all time was extended so as to indode la) 31st, the date of filing.

which has been stricken from the files, and

they are no longer before us for observation. Norman and A. H. Livingston,

It affirmatively appearing on the record that W. J. Orr, for respondents.

the bill of exceptions in this case was filed

out of time and without authority, it should , J. (after stating the facts). It

be treated as equivalent to the filing of no bill s been decided in this state that,

at all, and thereupon respondent is entitled ibe bill

to an affirmance of the judgment. Jordan v.
exceptions is filed within C. & A. Ry. Co., 92 Mo. App. 81.
the bille granted by the court for that pur- The judgment of the trial court is therefore
pose, it will not be noticed in the appellate affirmed. All concur.
Art State v. Harris, 121 Mo. 445, 26 S.

098; Butler County v. Graddy, 152 Mo.
H1, 34 S. W. 219; Dorman v. Coon, 119 Mo.
24 8. W. 731; Girdner v. Bryan, 94 Mo. STANDARD MFG. CO. V. HUDSON.
49. 27, 67 S. W. 699; State v. Britt, 117

(St. Louis Court of Appeals. Missouri. June No. 334, 23 S. W. 771; State v. Apperson,

19, 1905.) 115 10. 470, 22 S. W. 375; State v. Scott, 113

1. CONTRACTS-EXECUTION WRITING-PAUc. 5.59, 20 S. W. 1076. It has also been fre- ROL TERMS-PRESUMPTIONS. quently decided that in cases of this kind Where parties executed a written contract, there must be a showing in the record proper,

the contract would be conclusively presumed to

contain all of the terms, and constitute a waiv) aliunde the bill of exceptions itself, to

er of all matters discussed not included therein. ime effect that time has been granted to file 2. SAME-INVALIDATING WRITING-PABOL Ev. the bill of exceptions, and it must appear that IDENCE. set bill was filed within the time limit

Where defendant signed a written contract

to purchase certain goods, he would be conclupinted by the court. Pepperdine v. Hymes,

sively presumed to know the contents of the Mo. App. 464; Lucas v. Huff, 92 Mo. App. writing, and could not show that he did not 3; Jordan v. C. & A. Ry. Co., 92 Mo. App. read it and agree to all its terms. 61: Williams v. Harris (Mo. App.) 85 S. W.

3. SAME-EVIDENCE-DUPLICATES. 43; Ricketts v. Hart, 150 Mo. 64, 51 S. W.

Where defendant signed an original con

tract for the purchase of goods, the fact that a 43: St. Charles v. Deemar, 174 Mo. 122, 73

purported duplicate of the contract offered in & W. 469; Western Storage Co. v. Glasner, evidence was not the same as the original did 150 MIO. 426, 52 S. W. 237; Walser y. Wear,

not affect his liability. No. 6:32, 31 S. W. 37; State v. Harris,

4. SAME-BURDEN OF PROOF.

On an issue of non est factum, the burden 1 No. 445, 26 S. W. 558. All of the author

of proof is on defendant to show by a prepondSie bold that the statement contained in the erance of the evidence that he did not execute Bal of exceptions itself, to the effect that the the contract sued on. his filed in due time, etc., is insufficient;

5. APPEAL-REVIEW. for the reason that the bill cannot be permit

Where there was substantial evidence in

the record to support a finding in favor of deted to prove itself. We must, therefore, hold fendant on an issue of non est factum, such Hat the recital in the bill of exceptions in finding will not be set aside on appeal, unless it is case, to the effect that the time had been clearly appeared from the record that the findSended for its filing, was insufficient to sup

ing was arbitrary, or the result of passion, prej.

udice, or misconduct.
by the record in that respect. Western Stor-
27 CO.T. Glasner, 150 Mo. 426, 52 S. W. 237 ;

Appeal from Circuit Court, Barry County; ser 5. Wear, 128 Mo. 652, 31 S.· W. 37;

Henry C. Pepper, Judge.
St. Charles v. Deemar, 174 Mo, 122, 73 S. W.

Action by the Standard Manufacturing 47: Ricketts v. Hart, 150 Mo. 64, 51 S. W.

Company against Joseph Hudson. From a ; Lawson P. Mills, 150 Mo. 428, 51 S. W.

judgment in favor of defendant, plaintiff ap75; Williams v. Harris (Mo. App.) 85 S. W.

peals. Affirmed. 543; Jordan v. C. & A. Ry. Co., 92 Mo. App. This action is on a contract for the price 41: Lucis. Huff, 92 Mo. App. 369.

of goods sold and delivered. The defend. This being the adjudicated law on the sub

ant, a merchant at Cassville, purchased at the bill of exceptions must be stricken from plaintiff, an Illinois corporation, run the record; and, as there is no bill be- through its traveling salesman, a quantity te os presenting the evidence and matters of flavoring extracts, perfumes, and toilet herception bad upon the trial, there is noth

articles, etc., for which he signed a written to be reviewed by this court other than contract agreeing to pay therefor $173 in

Lucas v. Huff, 92 Mo. four equal installments, two, four, six, and App. 39; Pepperdine V. Hymes, 92 Mo. eight months after date. There were d. 164; CANSON v. Mills, 150 Mo. 428, 51 number of provisions in said written con

tract whereby a showcase was to be furnish

ed and defendant was required to keep the There are no assignments goods constantly on display. Certain profits

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were guarantied to defendant, etc., and cer- from reading it? A. You can't get me to tain invitation cards were to be furnished say that. I wouldn't say that for the world. him and be mailed out to his customers. Up- It had them changes in it. It was there when on the customer returning said card to I signed it. Q. Will you swear those words him, he would redeem the same by giving in this duplicate were in this when you signeach holder thereof 25 cents' worth of the ed it? A. Yes, sir; was there, but was goods of plaintiff's manufacture free of changed. It was an exact duplicate of the charge. This was a means of advertising one I have got. Q. How do you know it, at plaintiff's expense. There were other if you didn't read it? A. It was changed provisions, all of which, with those last men- there before my eyes. Q. Didn't you say tioned, are immaterial here, however, and you never read anything on it, but relied will not be further noticed. The day the in- on the reading of the agent? A. Yes, sir; voice came to hand, defendant wrote plain- I say that time I didn't read it. He chang. tiff that he had received the invoice, but that ed it before I signed it. I wouldn't sign it it was not according to contract, and declin- before he changed it.

A. Yes, sir; ing to accept the goods. Several letters of when he put that in there, he handed it right complaint passed from defendant to plain to me, and he had hold of it when I signed it. tiff. Upon the payments coming due under He was very careful.

A. I know the provisions of the contract, this suit was he changed it. Q. You say you did not see instituted in the circuit court of Barry coun- any indications of any changes? A. A man ty for the price of said goods.

can know some things, and I know he chanDefendant's answer admits that plaintiff ged that contract before I signed it. Then I shipped him the goods mentioned, and avers put my name to it, and then he gave me a the affirmative defense of non est factum as duplicate, and then got out quick.” Nothfollows: "Defendant, for answer to plain- | ing in evidence shows whether the contract tiff's petition, says that he did not sign or was filled out in ink or pencil, except that deliver to plaintiff the contract filed with it was signed in indelible pencil. plaintiff's petition, nor any contract of which The original contract upon which suit was the same is a copy." This answer is veri- brought, and which was introduced in evified by the oath of defendant. The issue dence at the trial, failed to show any of the thus made up, a jury being waived, was tried changes therein as testified to by defendant; by the judge. Plaintiff introduced the con- that is, it appears to have been the original tract and admission contained in defendant's printed form as printed by the company, answer, admitting that the goods had been without any of the interlineations which deshipped by plaintiff to him. Thereupon the fendant insists were made therein before he defendant was put upon the stand. He ex- affixed his signature thereto. If this is true, amined the contract and swore that it was then the contract sued upon is not the same signed by him. Thereupon the plaintiff rest- contract he signed. Both the original coned. To sustain the issues of non est factum tract and the copy thereof furnished deon his part, defendant testified in substance fendant by the agent at the time were before that he was called upon by plaintiff's agent; the trial court in evidence, and subject to that he and the agent had some conversation examination and comparison for alterations about the matter, and the agent made the or erasures, if any had been made therein. changes in the printed form as to six pay- A peremptory instruction to find for plaintiff ments, instead of four, as contended for by was refused, and five declarations of law defendant, in his presence; that he saw the given, which will be hereafter noticed. The changes made therein, and that they were trial court found the issues for the defendmade when he signed the contract, and that ant. Plaintiff appeals to this court, and inthe contract now appears without such chan- sists that, inasmuch as defendant admitted ges in it. Witness Bayless also swore that he signing the contract and failed to point out saw the agent writing on the contract just any interlineations or erasures therein, he before defendant signed it. Defendant tes. failed to sustain his defense of non est factified that the contract was read to him by tum, and therefore the finding of the court the agent, with its changes and a so-called was error. duplicate. Anyway a copy of the printed contract with the changes in it, as contended

Peel & Sizer and Davis & Steele, for appelfor by defendant, was delivered to him by

lant. George & Landis, for respondent. the agent at the time. This so-called duplicate was introduced in evidence and com- NORTONI, J. (after stating the facts). pared in the trial court, and was as testified The following declarations of law were givto by defendant. The defendant testified en by the court: "(a) The court declares the positively that, while he was unable to say law to be that all statements, conditions, and how the contract had been changed, he had understandings of the parties, at the time of not signed it as it now appeared. "Q. You executing the contract sued on or discussed did not see whether your duplicate and this prior thereto, including the purported duwas just alike? A. They were just the plicate introduced in evidence, different from same. Q. You couldn't say there had been the contract signed by defendant, are conany changes in this that you can discover clusively presumed to have been abandoned

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be the parties; and the contract signed by trial court to support the finding. The rethe defendant is conclusively presumed to spondent was positive that he had caused cotain all that the minds of the parties certain interlineations to be made in the conspred upon. (b) The court, sitting as a jury, tract before he signed it, and that after the declares the law to be that the defendant is changes were made the contract was the welcsively presumed to know the contents same as the purported copy the agent furof the contract which he signed, and he will nished him. The mere fact that respondent so: be permitted to show that he did not read testified at the trial that he could not then it and agree to all of its terms, and his fail- discover any signs of interlineations or eraare to read it does not alter or change his lia- sures would not justify this court in setting by under said contract. (c) The court de- up its judgment against that of the learned clares the law to be that even though the trial judge, who saw and heard the witnesses curt may believe, from the evidence, that and had an opportunity to form an intelligent the purported duplicate of the contract of- opinion of their credibility and the truth of tered in evidence by the defendant may not their statements; for respondent insisted in be the same, or may be different from the his testimony that he knew the contract had original sued on, yet if the one signed by the been changed, even though he could not point defendant bas not been changed since sign- out the physical evidence thereof on the ng it, then that fact would not alter or in- paper itself, and in this connection we must Taildate the one he did sign, and the issues remember that the trial court had the origDust be for the plaintiff. (d) The court, sit- inal contract and purported duplicate before trg as a jury, declares the law to be that it, where it could compare the two, and a party is bound to know the contents of a could, and no doubt did, examine closely Titing signed by him, and if he signed the (with the aid of a glass, if need be) for evigame without reading it, or relying upon dence of prior interlineations and erasures the representations of a stranger, he is never- thereof, and that the court took into account theless bound by the contract, and cannot the physical appearance of the contract, along istify as to his understanding of the con- with the testimony of respondent, when formTact different from the plain language of ing its judgment as to whether or not the the writing. He is bound by his agreement contract had been changed, and accordingly de berately entered into.” These instruc- found it to have been changed, and therefore 960s correctly declared the law of the case, not respondent's deed. 2 has been settled by former adjudications Finding no error in the record, the judg.

this state. See Crim v. Crim, 162 Mo. 544, ment must be affirmed. It is so ordered. All BS. W. 489, 54 L. R. A. 502, 85 Am. St. Rep. concur. 32; Kellerman v. Railway, 136 Mo. 177, 31

W. 41, 37 S. W. 828; Mateer v. Railway, 765 Mo. 320, 16 S. W. 839; O'Bryan v. Kin

ZEIGENMEYER v. CHARLES GOETZ 23, 74 Mo. 123; Snider V. Adams Express

LIME & CEMENT CO. Co., 63 Mo. 376; Johnston v. Cov. Mut. Ins.

(St. Louis Court of Appeals. Missouri. June , 3 Mo. App. 580.

19, 1905.) Tbe court also declared the law as follows:

1. MASTER AND SERVANT SAFE PLACE TO The court declares the law to be that the WORK-DUTY OF MASTER. burden of proof is upon the defendant to A master is only required to exercise rea

sonable care to provide as safe a place for the show by a preponderance of the evidence that

performance of the services by a servant as the he did not sign the contract sued on, and character of the work to be done will permit, zles he has shown by a preponderance of and is not bound to furnish a safe place, where

the danger is temporary or arises from the hazibe testimony the finding should be for the

ard and progress of the work itself. paintiff." This is a correct declaration of

[Ed. Note.--For cases in point, see vol. 34, te lax on the subject, and put the burden Cent. Dig. Master and Servant, &$ 173, 179.] proof upon the respondent to show by a

2. SAME. preponderance of the evidence that he had Where plaintiff was employed to work in a dot signed the contract as it then appeared, quarry, and knew of the danger from falling

The od therefore it was not his deed.

rocks on the setting off of blasts, and, on being

warned, stepped into a lime kiln chimney, which silt is, if there is substantial evidence in

he knew was defective, and was there struck the record to support the finding of the trial and injured by a falling rock thrown out by the

blast, defendant was not guilty of negligence in ort, we are not authorized to interfere

failing to provide him with a safe place to work. terenith, unless it appears clearly from the

3. SAME-ASSUMED RISK. und that the verdict is arbitrary, or the

Plaintiff, having continued to work with uit of passion, prejudice, or misconduct; full knowledge of the fact that falling stones

of various sizes were thrown out by such blasts, nd there is no suggestion to this effect in

and having voluntarily sought safety in the e case. Woodard v. Cooney (Mo. App.) 85

chimney, when by slight effort he could have obW.598, and cases cited therein. See, also, tained adequate protection in other places, asaber 7. Amer. Cen. Ins. Co., 35 Mo. App. sumed the risk. 21; Blanton y. Dold, 109 Mo. 64, 18 S. W. [Ed. Note.-For cases in point, see vol. 34,

Cent. Dig. Master and Servant, $ 583.] 19; Holt V. Johnson, 50 Mo. App. 373; SIZE y. Bride, 34 Mo. App. 414.

Appeal from Circuit Court, Franklin CounThere was substantial evidence before the ty; Wm. A. Davidson, Judge.

2

1

Action by James Mitchell, revived after his death in the name of Louis F. Zeigenmeyer, his administrator, against the Charles Goetz Lime & Cement Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action for personal injuries; a stone from a blast having fallen upon plaintiff's head, whereby his skull was crushed. The plaintiff was in the employ of the defendant as a laborer at its quarry. The defendant, a corporation, owns and maintains a stone quarry in Franklin county. The plaintiff's testimony shows the following facts, which are not controverted by the defendant:

Plaintiff resided 144 miles from the quarry, and in the year 1893 or 1894 had worked in the quarry, and was familiar with the work and its risks. In the latter part of March, 1902, he again employed himself to defendant as a laborer. His business was that of a teamster, hauling wood to the furnaces of the kilns, and hauling stone into the kiln. The site of the quarry is well elevated on a high bluff on the south side of the Missouri river. The Frisco Railway runs along at the foot of the bluff, and between the plant and the river. Defendant's kiln was built between the railway track and the bluff. A bridge about 14 feet wide was built over the roof of the kiln and connected with the bluff. A very large smokestack from the kiln, as much as 10 feet in diameter, protruded above this bridge. It was the duty of the plaintiff to load his cart with stone in the quarry, and drive therewith down the hill onto the bridge immediately over the kiln, and dump or unload the stone into this huge smokestack through two large doors provided in the side of this smokestack. The stone would thus fall into the kiln. The stone in the quarry was raised by blasts with large quantities of explosives, as is usual in quarries. There were two kinds of blasts, known to plaintiff and others who worked there--the squib shots, which were small blasts, and the block shots, which were very large and heavy blasts, in which were used from 10 to 15 25-pound cans of powder each. The duties of plaintiff brought him constantly in and out of the quarry, where he loaded bis cart with the stone, and he always knew about the blasts, when a blast was being prepared, and about when it would be discharged. After a blast was prepared, but before it was discharged, defendant had some one of its employés, with a loud voice, go out of the quarry and give several whoops at intervals, which was a warning signal to the employés that a blast was about to be fired. It was the duty, then, of all the men to seek shelter from the flying stones. The protection for those who worked in the quarry was usually a shelter in the bluff, which existed by virtue of an overhanging rock. It would accommodate 50 men, and

there were not one-half that number to use it. It was perfectly safe. At least, no flying stone from blasts had ever gotten in there, Plaintiff usually unloaded his cart on the bridge at the smokestack and then crawled under the cart for protection. At other times, he stepped inside of the smokestack for shelter from the falling stones which resulted from the blasts. On the day of the injury, July 18, 1902, after plaintiff had been in this second employment for more than three months, a block shot of 14 cans of powder was about to be fired. One Shelton gave the usual warning. Plaintiff knew of the preparation for the shot, heard and understood, and acted upon the warning by stepping inside of the smokestack, the topmost joint of which tapered from its 10-foot base, leaving a reasonable outlet for the smoke when the kiln was in blast. This top most tapering joint constituted a kind of roof over the very large lower portion of the smokestack. The topmost portion of the smokestack, the roof portion thereof, was of sheet iron, and not of very strong material, and on the side next to the quarry a portion thereof had broken loose from the rivets, thus leaving a hole through which falling stone could pass. Of this plaintiff admitted having full knowledge, having seen it before. Upon the firing off the blast or shot in question, a stone fell through this hole in the chimney portion or top of the smokestack, striking plaintiff on the head, thereby crushing his skull into his brain, inflicting a severe, permanent, and painful injury. Plaintiff, in his testimony, stated he might have gone into the bluff and have been safe, where the men fro the quarry were; but it was 300 or 400 yards out of his way to have done so, or be might have driven his cart and horse to the barn, by opening gates and going to some trouble, and have been safe there; but he had always sheltered on the bridge, either under the cart or in the smokestack. Plaintiff was wholly familiar with the work. He testified that he had worked at everything about the quarry except drilling, also that there were often rocks thrown from the quarry onto the bridge where he took shelter, but not very large ones. He further testified as follows: "Q. To what extent, if any, was rock thrown by blasts from the quarry past the kiln and out into the river?. A. Well, I have seen it go 100 yards out in the river from block shot. Q. What kind of rocks? A. Well, rocks that weighed from one to three pounds, depending on the size of the shot. Q. What do you know about it throwing rock across the river? A. Well, recently, I do not know, Q. Well, how far do you know of it throwing the rock in the river? A. It has gone as far as 300 yards that I know.

Q. What did you say were the sizes of the rock that fell there at the bridge? A. Well, from the size of your fist down." He further testified

tbst neither the foreman nor any one rep- are conducting business for it, the very nareseating the company had ever ordered him ture of which business renders the place

suggested to him that he take refuge on temporarily unsafe at times? The law does e about the bridge, but that such had al- not require the master to furnish an absoFits been his custom, and the foreman lutely safe place in every instance for the krew it. All of the evidence goes to show servant to work, for the reason that the that plaintiff or none of the employés were law recognizes that such requirement would Tejaired or expected to proceed with their be unreasonable on its part, and impossible work while blasts were being fired or stones of fulfillment on the employer's part, in view filling therefrom, and that the warning was of the fact that there are many undertakaren for no other purpose than to cause ings and employments which are dangerous them to suspend operations and seek shelter within themselves, and about the conduct caring that time.

of which no absolutely safe and secure place The petition was in two counts. The first could be furnished, Therefore the obligacount pleaded the principal facts as here- tion which the law places upon the master tabore set out, and predicated a right of is to some extent a relative obligation, and recovery upon the alleged negligence of de- only requires him to exercise reasonable care fendant in failing to provide plaintiff with to provide as safe a place for the performa safe place to work. The second count ance of the services as the character of the stated the same facts, and predicated the work to be done will permit, or, in other rigbt of recovery upon the alleged negli- words, the law requires the master to furgence of defendant in loading and explod- nish his servant a suitable place to do, his ing an extraordinary blast. On the trial, work, where by the exercise of ordinary care the evidence showed that the blast was not on his part he may perform his work with ertraordinary. The verdict on the second safety, or subject only to such hazards as ccant, therefore, was for the defendant, and are necessarily incident to the employment. on the first count the jury returned a ver- Bradley V. Railway Co., 138 Mo. 293, 39 S. dist for plaintiff in the sum of $1,800. De- W. 763; Sullivan V. India Mfg. Co., 113 fendant appeals to this court, and insists Mass. 396; O'Connell v. Clark (Sup.) 48 N. that the court erred in submitting the case Y. Supp. 74-75; Fugler V. Bothe, 117 Mo.

the jury for the reason that the plain. 475, 22 S. W. 1113; Livengood v. Joplin, etc., of assumed the risk, and that, having chos- L. & Z. Co., 179 Mo. 229, 77 S. W. 1077; 20 en bis own place of refuge, his going into Am. & Eng. Ency. Law (2d Ed.) 55–57. the smokestack, with a hole therein im- To follow the question still further, we mediately over his head through which fall- find the rule of safe place is not applicable ing rocks might pass and inflict an injury, to every state of facts, nor is the principle as was done, would preclude a recovery up- of safe place pertinent in every case that

the ground of contributory negligence. may arise out of the multiplicity of employAfter judgment, plaintiff departed this life. ments and diversity of risks encountered. It The case now stands revived in the name has one well-defined and thoroughly estabof bis administrator. There are several er- lished exception. It is that the master is rors in the instructions given and refused. not required to furnish his servant a safe It will be unnecessary for us to notice but place in which to work, where the danger spe, as the view we take of this case will is temporary only, and when it arises from freclode any recovery.

the hazard and progress of the work itself,

and is known to the servant. Davis v. MinMcKeigban & Watts, for appellant. James

ing Co., 117 Fed. 122-124, 54 C. C. A, 636; Booth and J. W. Booth, for respondent.

Bradley v. Railway Co., 138 Mo. 293, 39 S.

W. 763; O'Connell v. Clark (Sup.) 48 N. Y. NORTONI, J. (after stating the facts). Supp. 74-75; Armour v. Hahn, 111 U. S. Tbe finding of the jury for the appellant on 313–318, 4 Sup. Ct. 433, 28 L. Ed. 440; Finthe second count of the petition, as above alyson v. Utica Min., etc., Co., 67 Fed. 507, ftated, eliminated from the case the charge 14 C. C. A. 492-494; Durst v. Carnegie Steel zegligence in exploding an extraordinary Co., 173 Pa. 162–165, 33 Atl. 1102; WhittaL'ast, and the finding for the respondent ker v. Bent, 167 Mass. 588-589, 46 N. E. y the first count of the petition affirm- 121; Meehan v. Speirs Mfg. Co., 172 Mass.

that appellant was negligent in failing to 375, 52 N. E. 518; Browne v. King, 100 Fed. ride respondent with a reasonably safe 561, 40 C. C. A. 545; Anderson v. Min. Co. piece in wbich to carry on his work, SO (Utah) 50 Pac. 815; Railway Co. v. Jackson, at as tbe case stands before us, the recov- 65 Fed. 48, 12 C. C. A. 507; Livengood v. +57 is predicated upon the failure to furnish Joplin, etc., L. & Z. Co., 179 Mo. 229, 77 S. a safe place to work. The question of safe W. 1077; 20 Am. & Eng. Ency. Law (2d Ed.) piece is the only question with which we 57; City of Minneapolis v. Lundin, 58 Fed. we called upon to deal. The question pre- 525, 7 C. C. A. 344; Kennedy v. Grace, etc., wted for our decision is, granting all the Co. (C. C.) 92 Fed. 116; Petaja V. Aurora

to be true as stated, does the law re- Iron Min, Co., 106 Mich. 463, 64 N. W. 335, 66 rate appellant to furnish a place at all N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. sa reasonably safe to its servants who 503; Beique v. Hosmer, 169 Mass. 541, 48

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