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by the applicant and the signing of it by “constitution” from § 1 of article 16, when him, and to the report of the committee up- the same was used in clause 9 of the applion the application, and to the indorsement to cation, possesses a peculiar significance with be made upon the application, and to the reference to the interpretation of the lanapproval of the application by the supreme guage now under consideration. medical director, and the return of the same It is thus apparent that if, after two to the office of the supreme secretary; and it years from the date of the certificate, the is specitically stated that "each application member continued in good standing,—and for membership and indemnity must be in such was the fact in regard to William writing on blanks furnished by the order.” Achterrath,--the only conditions after that The agreements, embodied in clauses 8 and 9 date binding upon him were the agreements of the application in the present case are as to his full compliance with the laws and parts of a printed blank furnished by the or- rules of the association, and not such other der. Unquestionably, the language of this agreements as were made independently and printed blank was in the mind of the order outside of the laws and rules of the associawhen it framed § 1 of article 16. The follow- tion. It follows that the words “in all ing words in that section, to wit, “the agree other respects the payment of any sum due ments as to his full compliance with the under any certificate, issued to a member, laws and rules of the association,”—are sub- shall be indisputable and incontestable," stantially the same as the language used in were intended to mean that the benefit clause 9 of the application. It is to be pre- certificate should be incontestable after two sumed, therefore, that the reference in § 1 years, except for certain conditions, among of article 16 of the constitution is to the which suicide was not embraced.

Our agreement embodied in clause 9 of the ap- opinion is that here the incontestable clause plication, and not to the agreement em- applies even though the insured came to his bodied in clause 8 of the application. This death by suicide. The only conditions bindconclusion receives indorsement from the ing upon the member remaining in good fact that in clause 9 the agreement is “to standing after the lapse of the two years conforın in all respects to the constitution, did not embrace any agreements in regard laws, rules, and usages of this order,” etc. to suicide or death by his own hand. At The language in $ 1 of article 16 is “the any rate, the language of § 1 of article 16 agreements as to his full compliance with leaves it doubtful whether such was the the laws and rules of the association.” It case or not. This being so, the rule applies will be observed that in § 1 of article 16 that, where there is a reasonable doubt as the word "constitution” is left out, and the to the extent of the application of the inwords "laws and rules" are used. The pro- contestable clause, it must be solved in vision that, "if a member dies

by favor of the beneficiary. self-destruction,

the certificate The action of the trial court in ruling of membership shall be null and void,” is a upon the evidence, and in the giving and repart of the constitution of the order; that fusal of instructions, was in accordance subis to say, it is $ 5 of article 10 of the consti- stantially with the views here announced. tution. But the agreements mentioned in The judgments of the appellate and trial $ 1 of article 16 do not refer to the consti- courts were based upon the theory that, tution, but only to the laws and rules of the under § 1 of article 16, the appellant was association. It cannot be supposed, there. estopped from refusing payment on fore, that § 1 of article 16 referred to that count of Achterrath's death by self-destrucprovision of the constitution embodied in $ tion. We think that they adopted the 5 of article 10. It is true that the word correct theory, and gave the correct in"rules" is sometimes used in a sense suf-terpretation to g 1 of article 16. ficiently broad to embrace such rules as are Accordingly, the judgment of the Appelembodied in the constitution as well as in late Court is affirmed. the by-laws. But the omission of the word

ac

INDIANA SUPREME COURT. SOUTHERN INDIANA RAILWAY COM- ing of separate demurrers to several PANY, Appt.,

paragraphs of complaint presents no question

for the court on appeal. V.

2. Jackson J. HARRELL.

A master is not liable for injury to

an employee from the fact that a derrick (..... Ind.........)

erected for the purpose of constructing a 1. A general exception to the overrul- stone pier under a railroad bridge, inclined

NOTE.-For vice principalship, as determined | caused the injury, see also, in this series, with respect to the character of the act that | Lafayette Bridge Co. v. Olsen, 54 L. R. A. 33, so as to swing the stones towards the track, 1 negligence caused the injury was in the where the injury was caused by the negli. service of the defendant; that the injured gent breach, by employees, of a custom never to attempt to handle stones when a train employee was bound to conform to the was passing, in consequence of which a sus

orders or direction of such person at the pended stone struck a moving train, and was time of the injury, was himself without

forced against an employee to his injury. fault, and was conforming to such orders or 3. A statute making the master liable directions at the time of the injury.

for injuries received by an employee while obeying the order or direction of a

Indianapolis Gas Co. v. Shumack, 23 Ind. vice principal does not apply to orders which App. 87, 54 Y. E. 414. are as broad as the whole service, so that at It is error to instruct the jury that the the time of the injury the person injured was servant assumes only the risks from the governing himself according to his own judg. dangers of which he has knowledge, without ment as to what was proper. 4. A servant assumes the risk of in- / instructing that he assumes the risks which

jury from the negligence of fellow servants by the use of ordinary care and diligence who have been selected with due care

would have been known to him. the part of the master.

Pennsylvania Co. v. Ebaugh, 152 Ind. 531, A foreman of a bridge construction 53 N. E. 763; Wabash R. Co. v. Ray, 152 gang does not represent the master Ind. 392, 51 N. E. 920; Whitcomb v. Standin directing, at a time when a train is pass; ard Oil Co. 153 Ind. 513, 55 N. E. 440; ing, the raising, by a derrick so constructed as to swing toward the track, of a stone to Aattaway v. Atlanta Steel & Tin-Plate Co. be placed in a pier of a railroad bridge, the 155 Ind. 507, 58 N. E. 718; Rietman v. effect of which is that the stone swings Stolte, 120 Ind. 314, 22 N. E. 304; Indiana, against the train, and is forced against an

B. & W. R. Co. v. Dailey, 110 Ind. 75, 10 N. employee to his injury.

E. 031. 6. A master is not bound to have present at every moment a representa

A servant engaged in constructing a railtive at the place where work is being per- road, and bridges for the railroad under formed, to keep safe the position which an construction, having an equal opportunity employee may chance to occupy as against to know of the dangers, assumes all the possible negligence of coemployees.

risks incident to the employment. (October 9, 1903.)

Baltimore c 0. S. W. R. Co. v. Welsh, 17 Ind. App. 505, 47 N. E. 182; Evansville & R.

on

of the Appellate Court, Second Di. 216; Bedford Belt R. Co. v. Brown, 142 Ind. vision, which affirmed a judgment of the 659, 42 N. E. 339. Circuit, Court for Greene County in plain- A master is not liable to a servant for an tiff's favor in an action brought to recover injury caused by the negligence of a fellow damages for personal injuries alleged to servant. have been caused by defendant's negligence. Indiana Car Co. v. Parker, 100 Ind. 181. Reversed.

a foreman is a fellow servant with those The facts are stated in the opinion. working with him.

Niessrs. F. M. Trissal, T. J. Brooks, Ibid., American Teleph. & Teleg.' Co. v. W. F. Brooks, and E. Short, for appel- Bower, 20 Ind. App. 32, 49 N. E. 182; iant:

Perigo v. Indianapolis Brewing Co. 21 Ind. The employer's liability act does not ap- App. 338, 52 N. E. 462 ; Justice v. Pennsylply to railroads in process of construction. vania Co. 130 Ind. 321, 30 N. E. 303; Vew

Burns's Rev. Stat. 1894, § 7083; Malone Pittsburgh Coal & C. Co. v. Peterson, 14 v. Burlington, C. R. & N. R. Co. 61 Iowa, Ind. App. 634, 43 N. E. 270, 136 Ind. 398, 326, 47 Am. Rep. 813, 16 N. W. 203; Deppe 43 Am. St. Rep. 327, 35 N. E. 7; Louisv. Chicago, R. I. & P. R. Co. 36 Iowa, 52; ville, N. A. & C. R. Co. v. Isom, 10 Ind. Schroeder v. Chicago, R. I. & P. R. Co. 41 App. 691, 38 N. E. 423. lowa, 344; Smith v. Burlington, C. R. & N. The employee assumes all the ordinary R. Co. 59 Iowa, 73, 12 N. W. 763.

and usual risks incident to the service, and The employer's liability act is limited in all that are known to him, or by the exerits operation and effect to persons, places, cise of ordinary care and diligence could be appliances, and negligent acts that are par- known to him. ticularly enumerated therein.

Mielke v. Chicago & N. W. R. Co. 103 Baltimore & 0. S. W. R. Co. v. Little, 149 Wis. 1, 74 Am. St. Rep. 834, 79 N. W. 22; Ind. 167, 48 N. E. 862; Whitcomb v. Stand-Louisville, E. & St. L. Consol. R. Co. v. ard Oil Co. 153 Ind. 513, 55 N. E. 440. Hanning, 131 Ind. 528, 31 Am. St. Rep. 443,

It must appear that the person whose '31 N. E. 187; Wabash Paper Co. v. Webb, and note; Norton Bros. v. Nadebok, 54 L. R. A. Southern P. Co. v. Schoer, 57 L. R. A. 707 ; and 842; Wellston Coal Co. v. Smith, 55 L. R. A. Knutter v. New York & N. J. Teleph. Co. 58 99; Swift & Co. v. Bleise, 57 L. R. A. 147; | L. R. A. 808. Kelly v. New Haven S. B. Co. 57 L. R. A. 494 ;

146 Ind. 303, 45 N. E. 474; Ross v. Union l v. Scharer, 49 C. C. A. 372, 111 Fed. 335; Cement & Lime Co. 25 Ind. App. 463, 58 N. Elliott, Railroads, $ 1329; Hodges v. StandE. 500.

ard Wheel Co. 152 Ind. 680, 52 N. E. 391, A servant having access to a safe place in 54 N. E. 383; Central R. Co. v. Keegan, 160 which to work, and choosing a dangerous U. S. 259, 40 L. ed. 418, 16 Sup. Ct. Rep. place, who is thereby injured, cannot re- 269; Kerner v. Baltimore & 0. S. W. R. Co. cover damages of his employer for such 149 Ind. 21, 48 N. E. 364; Southern Indiana injury.

R. Co. v. Martin, 160 Ind. 280, 66 N. E. 886. Consolidated Stone Co. v. Redmon, 23 Ind. Messrs. John R. East, Rufus H. East, App. 3!9, 55 N. E. 454

and McHenry Owen, for appellee: The fellow-servant doctrine, and the rule The employers' liability act applies to all of assumed risk, are still honored in states railroads operating in this state. in which cmployers' liability acts have been Burns's Rev. Stat. 1894, § 7083; Horner's passed.

Rev. Stat. 1897, § 5206s; Louisville, N. A. Hawk v. McLeod Lumber Co. 166 Mo. 121, &0. R. Co. v. Wagner, 153 Ind. 420, 53 N. 65 S. W. 1022; O'Neil v. O'Leary, 164 Mass. E. 927; Baltimore & 0. 8. W. R. Co. v. Lit387, 41 N. E. 062; Cunningham v. Lynn & ile, 149 Ind. 167, 48 N. E. 862. B. Street R. Co. 170 Mass. 298, 49 N. E Appellant is liable in this action under 440; Brittain v. West End Street R. Co. the 2d subdivision of § 1 of the employers' 168 Mass. 10, 46 N. E. ill; Cashman v. liability act. John Gratzer was in charge Chase, 156 Mass. 342, 31 N. E. 4; Shaffers of appellant's work, authorized to order and v. General Steam Nav. Co. L. R. 10 Q. B. direct. Ile was guilty of negligence causing Div. 356; Osborne v. Jackson, L. R. 11 Q. appellee's injuries; and at the time of his B. Div. 619; Kellard v. Rooke, L. R. 19 Q. injuries appellee was conforming to his B. Div. 585, L. R. 21 Q. B. Div. 367; (Gratzer's) orders, and was in the exercise Birmingham. R. & Electric Co. v. Allen, 99 of due care and diligence for his own safeAla. 359, 20 L. R. A. 457, 13 So. 8; Postal ty. Teleg. Cable Co. v. Hulsey, 115 Ala. 193, 22 Burns's Rev. Stat. 1894; Louisville, N. A. So. 854; Whitcomb v. Standard Oil Co. 153 & C. R. Co. v. Wagner, 153 Ind. 420, 53 N. Ind. 513, 55 N. E. 440; Pittsburgh, C. C. & E. 927. St. L. R. Co. v. Moore, 152 Ind. 345, 44 L. Appellant is liable in this action at comR. A. 638, 53 N. E. 290; Baltimore & 0. . mon law. W. R. Co. v. Little, 149 Ind. 167, 48 N. E. Nall v. Louisville, N. A. C. R. Co. 129 862.

Ind. 260, 28 N. E. 183, 611; Louisville, E. & The tests in determining whether the act St. L. Consol. R. Co. v. Fanning, 131 Ind. was one of superintendence or of carrying 528, 31 Am. St. Rep. 443, 31 N. E. 187; on the work are, whether it was an unusual Louisville, E. & St. L. R. Co. v. Berry, 2 signal or direction, whether it was such as Ind. App. 427, 28 N. E. 714; Brazil Block was common during the progress of the Coal Co. v. Boodlet, 129 Ind. 327, 27 N. E. work, whether it related to the work, or to 741. some innovation in it, or to something un- It affirmatively appears from the record usual in its progress, and whether the acci- that the verdict of the jury was right upon dent might not have happened on any other the evidence in this case, and the judgment day while the work was progressing. will not be reversed on account of alleged

Chicago & 4. R. Co. v. May, 108 Ill. 288; erroneous instructions. Gall v. Beckstein, 173 11. 187, 50 N. E. 711; Island Coal Co. v. Neal, 15 Ind. App. 15, TV'estville Coal Co. v. Schwartz, 177 Ill. 42 N. E. 953, 43 N. E. 463; Shields v. State, 273, 52 N. E. 276; Illinois C. R. Co. v. 149 Ind. 395, 49 V. E. 351; Mode v. Beasley, Bolton, 99 Tenn. 273, 41 S. W. 442; Hussey 143 Ind. 306, 42 N. E. 727; Stanley v. Dunn, v. Coger, 112 N. Y. 614, 3 L. R. A, 559, 8 143 Ind. 495, 42 N. E. 908; Woods v. Tipton Ain. St. Rep. 787, 20 N. E. 556.

County, 128 {nd. 289, 27 N. E. 611; Swaim The fact that Gratzer may have given the v. Swaim, 134 Ind. 596, 33 N. E. 792. signal too soon did not change his relation John Gratzer was appellant's vice princito the appellee.

pal, both under the statute and at common Libby, Mo N. & L. v. Scherman, 146 Ill. law. 540, 37 Am. St. Rep. 191, 34 N. E. 801; Nall v. Louisville, N. A. & C. R. Co. 129 Norton Bros. v. Nadebok, 190 Ill. 595, 54 L. Ind. 260, 28 V. E. 183, 611; Taylor v. EvansR. A. 842, 60 N. E. 843; Taylor V. Evans- ville T. H. R. Co. 121 Ind. 126, 6 L. R. A. ville & T. H. R. Co. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. Rep. 372, 22 N. E. 876; 584, 16 Am. St. Rep. 372, 22 N. E. 876; Louisville, N. A. & C. R. Co. v. Graham, 124 William Graver Tank Works v. O'Donnell, Ind. 90, 24 N. E. 668; Louisville, N. A. & C. 191 JlI. 236, 60 N. E. 831; Illinois C. R. Co. R. Co. v. Wagner, 153 Ind. 420, 53 N. E. v. Atuell, 198 Ill. 200, 64 N. E. 1095; Slack 927; Indianapolis Gas Co. v. Shumack, 23 v. Harris, 200 III. 90, 65 N. E. 669; Weeks 'Ind. App. 87, 54 N. E. 414.

On petition for rehearing.

Louisville, N. A. & C. R. Co. v. Graham, 124 If Gratzer stood in the relation of vice Ind. 90, 24 N. E. 668; Southern Indiana R. principal to any of the servants, in the giv- Co. v. Martin, 160 Ind. 280, 66 N. E. 886; ing of the negligent order, then he ought to Columbus & 1. C. R. Co. v. Arnold, 31 Ind. he held to occupy the same relation as to all 174, 99 Am. Dec. 615. persons affected by the order.

Reno, Employers' Liability Acts, 2d ed. p. Gillett, J., delivered the opinion of the 1; Thacker v. Chicago, I. & L. R. Co. 159 court: Ind. 82, 59 L. R. A. 792, 64 N. E. 605.

This was an action for an injury to the The statute places the case upon a princi- person of appellee. He recovered in the ple different from that in support of the co- court below, and the judgment was affirmed servant's rulc and the assumption of the by the second division of the appellate risk. The test here is threefold: (1) Was court. Appellant appeals to this court unthie offending servant clothed by the employ- der the third subdivision of $ 1337j, Burns's er with authority to give orders to the in- Rev. Stat. 1901, and assigns as error liere jured servant that the latter was bound to that said division erred in affirming the obey? (2) Did the injury result to the lat. judgment of the trial court. We proceed to ter from the negligence of the former while a consideration of such assignments of error conforming to an order of the former that in the appellate court as were not subsethe injured servant was, at the time, bound quently waived. to obey? (3) Was the injured party at the There were seven paragraphs of comtime of the injury in the exercise of due plaint, and appellant demurred to each of care and diligence? If these three things them. Its demurrer was overruled, and it occur, appellee exhibits a good cause of ac- reserved a general exception to the ruling. tion.

Although appellant sought on appeal to Louisville, N. A. c O. R. Co. v. Wagner, question severally said ruling as to each of 153 Ind. 420, 53 N. E. 927; Thacker v. Chi- said paragraphs, yet, as the exception was cago, !. & L. R. Co. 159 Ind. 82, 59 L. R. A. in gross, we are compelled to hold that such 792, 61 N. E. 605; Reno, Employers' Liabil-assignments of error present no question for ity Acts, 2d ed. § 126; Millward v. Midland our consideration. Noonan v. Bell, 159 Ind. R. Co. L. R. 14 Q. B. Div. 68; Indianapolis 329, 64 N. E. 909, and cases there cited. Gas Co. v. Shumack, 23 Ind. App. 87, 54 N. Appellant further assigned as error that E. 114; Terre Haute & I. R. Co. v. Ritten- the Greene circuit court erred in overruling house, 28 Ind. App. 633, 62 N. E. 295. its motion for a new trial. Among other

Railroad companies are answerable for grounds for a new trial, appellant assigned the negligence of their servants in charge of in said motion that the verdict was contrary signals, telegraph offices, switch yards, to the evidence, and, further, that the vershops, roundhouses, locomotive engines, and dict was contrary to law. trains upon their railways, to their em- The evidence showed the following state ployees the same as to strangers.

of facts: On July 5, 1899, appellant, a railBaltimore d 0. W. R. Co. v. Little, road corporation, was engaged in the con149 Ind. 167, 48 N. E. 862; Baltimore d 0. struction of a railroad bridge over White S. W. R. Co. v. Peterson, 156 Ind. 364, 59 river, in the county of Greene. A tempoN. E. 1044; Pittsburgh, C. C. & St. L. R. Co. rary work or bridge had been built over the v. Montgomery, 152 Ind. 1, 71 Am. St. Rep. river, on which a track had been laid. A 301, 49 N. E. 582.

stone pier was being built under the strucIt was sufficient if the proof showed that ture, and a number of men, including apGratzer had charge or control for the time peilee, were engaged in its construction, being, for a temporary purpose.

under one John Gratzer. The necessary Reno, Employers' Liability Acts, 2d ed. 8 stone were unloaded from cars, and were 110; Shea v. New York, N. H. & H. R. Co. placed in position by means of a derrick, 173 Mass. 177, 53 N. E. 396; Caron v. Bos. which was crected upon a platform a few ton & A. R. Co. 164 Mass. 523, 42 N. E. 112; feet north of the track. The derrick's mast Steffe v. Old Colony R. Co. 156 Mass. 262, was so stayed as to give the top a slight in30 N. E. 1137; Island Coal Co. v. Swagger-clination toward the south, with the result ty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. that in handling a heavy stone it had a ten1026; Taylor v. Evansville & T. H. R. Co. dency to swing toward the pier and track. 121 Ind. 124, 6 L. R. A. 584, 16 Am. St. Rep. There was evidence that the derrick was 372, 22 N. E. 876.

purposely so constructed, with a view to its Appellee had a right to recover at com- greater utility; but whether it can be said mon law.

to have been defective or no, by reason of Indiana, I. & I. R. Co. v. Snyder, 140 Ind. being so constructed, it appears that appel647, 39 N. E. 912; 2 Bailey, Personal Inju- lee, whose principal business was to arrange ries Relating to Master & Servant, & 1951; 'the tackle about the stone and lower it from the cars, know of such tendency, and had, zer had exclusive charge of the stonework. helped to hold a rope in keeping the boom He directed the men and worked himseli. and suspended stone from swinging over the The various paragraphs of complaint rest track. There had never been an attempt to on various theories. Negligence is charged handle a stone when the portion of the track against appellant in the construction of the that was adjacent was occupied by a moving derrick, and also against Gratzer and the locomotive or cars. Near the close of work- conductor and the engineer severally. There ing hours on the day in question a locomo- is no charge that appellant did not exercise tive and two or three flat cars stood near the due care in the selection of said employees. east end of said temporary bridge. A heavy Appellee's counsel say of the complaint: stone, which had just been unloaded from "The first five paragraphs minutely describe one of said flat cars, lay upon the pier, occu- all the conditions and concurring causes of pying its intended place in the top course. the injury. The sixth paragraph is intendA short distance to the west there were seved to be pleaded under the 2d subdivision of eral flat cars, and still further on, and near $ 1 of the employers' liability act. The the west end of the bridge, were a portable seventh paragraph charges negligence pile driver and its car. Appellee, who tes against the engineer of the train and the tified that there was nothing for him to do conductor, and also against Gratzer, charg. at that time, was seated upon a projecting ing them all as vice principals under the 4th bent. He had not received a command as to subdivision of the act." There was not a what place he should occupy. The conduc scintilla of evidence supporting the theory tor of the train said to Gratzer, "John, are that either the conductor or the engineer you going in with us?” The latter an- was negligent. Neither of them is shown to swered that lie and his men were going to have known that the stone was suspended or set the stone and return on a hand car. to have had any reason to apprehend that it After about two minutes, occupied by the was. The manner in which the derrick was men in charge of the train in coupling the constructed does not appear to have been the flat cars and the pile driver and its car to-proximate cause of the accident. The der. gether, the train, as thus made up, started rick possessed a particular utility when coneast, and, before the pile driver reached the structed as it was, and it was ordinarily pier, the train was moving at a speed of safe so long as it was used in accordance from 3 to 6 miles an hour. In the mean- with the established custom that the evitime Gratzer ordered one of the men to sig. dence shows had before obtained. It was a nal the stationary engineer to raise the master's duty to have the derrick properly stone a little, it being necessary to make a constructed and maintained, but appellant mortar bed under it. The signal was given, was not bound to apprehend that its servant and the stone was raised about 2 feet before might put the same to a negligent use,-a the pile driver had passed. Three men,

use wholly contrary to the custom that had Courtney, Clemmons, and Polland, were

obtained before the accident. See, on the holding the stone away from the track, by subject of proximate cause, Enochs v. Pittsmeans of a rope, after the stone was raised burgh, C. C. & St. L. R. Co. 145 Ind. 635, 44 above the course in which it had rested, N. E. 658; 1 Thomp. Neg. $$ 43 et seq. Clemmons and Polland let go of the rope, whether appellant was responsible for the

This brings us to the question as to Clemmons going to get his trowel and Polland going to get mortar. Courtney was

negligence of Gratzer, assuming that he, as thus left to hold the stone alone, and, as it well as Clemmons and Polland, was guilty proved too heavy for him, he abandoned the of negligence. As to the employers' liabil. rope, and sought a place of safety. The ity act (Burns's Rev. Stat. 1901, $$ 7083 et boom then swung around, and the chain seq.), it is evident that appellant is not liawhich held the suspended stone caught on

ble under the 2d subdivision of the 1st secthe running board of the pile driver. This create a liability based on an order or direc

tion. That subdivision was not intended to caused the stone to swing east, and as it swung back it struck appellee, crushing one broad as the whole service, and where the

tion, where such order or direction was as of his feet and injuring the other. It injured servant, without the compulsion of seems to have been but a brief interval after an order or direction from one whose order the stone swung clear until the chain caught or direction he was required to obey, was at on the running board, as a number of ap- the time governing himself according to his pellee's witnesses in effect testified. Appel- own judgment as to what was proper. In lee's witness Helms, who was on the third so far as the 4th subdivision of said section or fourth car east of the pile driver, testi- is concerned, it does not appear that Gratfied that the stone was not suspended as he zer belonged to any of the classes of servpassed the derrick, and that he was looking ants particularly mentioned therein. The to see that all fall lines were clear. Grat-' latter part of said subdivision is not any

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