the latter date, he was ordered by the de- | wide by one inch thick, over the joints. fendant's foreman to do certain work, and, while ascending a ladder, one of the rungs pulled out, and he fell to the floor below. The result of the unfortunate accident was, that his back was broken, and he has been unable since to walk, and, of course, he cannot follow his former calling. The story of the accident, as told by the plaintiff, was, that John Elsen, the foreman of the defendant, called to him to climb the ladder, in order to make some alterations on the window, where an iron-worker had been waiting for him for some time; that he ascended the ladder in order to do it, carrying his tools in one hand, and using the other hand to climb; that, when he was up about thirty-five feet, a rung came loose, and he fell. It was a long ladder, forty-two feet,-made out of three by four-inch stuff for uprights, and one by two-inch stuff for rungs, which were nailed, for thirty-two feet, ten inches apart, on the outside of the ladder. There were two sections, sixteen feet each. The remainder of the ladder was made out of an old piece, which had been used before on different jobs, and this had twelve-inch spaces, and was also spliced. The ladder stood on the east end of the main bank room. The hodcarriers and brick-layers had used a part of it, and, as the building progressed, it was lengthened. While the plaintiff said it was rather dark in the room, that the windows had no glass in them, and they were shut in with white muslin, there is no evidence that this in any way contributed to the accident. The window at which the work was to be done was about fifteen feet high, and from fifteen to twenty feet wide. The ladder, at the bottom, stood six or seven feet away from the wall, the scaffold or platform being between. The plaintiff and other carpenters employed on the work joined the ladder together and put it up. He does not recollect whether or not they made it. They first raised up a sixteen-foot section, and then added the second sixteen-foot section later, nailing cleats, at least three or four feet long and four inches They then braced the ladder at several points. When the third section was put on, they fastened it in the same way. For the brick-layers, the ladder was placed facing east, straight up and down; but, six weeks or two months before the accident, it was loosened from the scaffold and slanted south, as above stated. The plaintiff had used it very often; in fact, every day. He states that he took a brace and bit, a hatchet and a saw in his right hand, and used his left hand to hold on to the ladder, and, in this manner, ascended it, although he admits he knew that a ladder of that kind, thus ascended, was dangerous. It seems that a rung pulled out of the third section, and that was what threw him down. A minute or two before the accident, Samuel Gray, a plasterer, who had dropped his pointer, went down the ladder, and returned with it; and, within five minutes after the plaintiff fell, another plasterer went down the ladder. The latter found a rung gone. It is upon these facts that the plaintiff must recover, if at all; and, as we deemed them insufficient, a judgment of non-suit was entered. We are now asked to reconsider the question and permit the case to be passed upon by a jury. In Stitzel v. Wilhelm Co., 220 Pa., 564, it is said that, "in this state, the law is settled that an employee, in accepting employment, assumes all risks ordinarily incident thereto, and all other risks open and obvious, the dangerous character of which he has had an opportunity to observe: Dooner v. Canal Co., 171 Pa., 581; Boyd v. Harris, 176 Pa., 484; Nuss v. Rafsnyder, 178 Pa., 397; Fulford v. Railroad Co., 185 Pa., 329." And in Dellasala v. Josephine Furnace & Coke Co., 242 Pa., 591, it was held that, "where risks incidental to employment, which are quite as well understood by the employee as by the employer, are incurred by the employee, and from his familiarity with such risks, such employee is equally able to measure the danger with his employer, no liability will attach to the employer for injuries sustained by the employee in consequence of exposure to such risks." Mr. Justice Elkin, in Bowen v. Pennsylvania | must be predicated of their judgment R. R. Co., 219 Pa., 405, stating the rule, and prudence; and hence, when the emsays: "It seems but reasonable to hold ployer furnishes them with tools and apthat, when one person enters the employ pliances which, though not the best posof another, there is an implied contract sible, may by ordinary care be used withthat he assumes such risks as are ordin- out danger, he has discharged his duty, arily incidental to that employment, and and is not responsible for accidents;" to have notice of all such risks as are, and in Schneider v. Philadelphia Quartz or ought to be, open and obvious to a Co., 220 Pa., 548, that, "when the work person of his experience. In theory, at is of such character that the environment least, the employee is presumed to have of the servant as the work progresses waived any right of action he might necessarily undergoes frequent changes, otherwise have for injuries received, if the master is not bound to protect the such injuries result from the risks and servant engaged in it against dangers redangers of the employment in which he sulting from such changes. *** This is engaged. He assumes this risk in ad- doctrine results from the fact that the vance at the very inception of his con- prosecution of the work does make the tract of employment, and it continues so place dangerous; but it is not the duty. long as that relation exists." See, also, in such case for the master to follow up Masterson v. Eldridge, 208 Pa., 242. the servants every moment to see that they make the place safe." In Staebler v. Warren-Ehret Co., 223 Pa., 129, it is also said that "the duty to provide a safe place in which to work does not extend to the guarding of each place to which the workmen may be sent to do a particular piece of work. The employer's duty is performed by providing adequate means of making the place reasonably safe. He is not required to supervise the details of the work, and he is not responsible for an error of judgment by a competent foreman who is in charge of the work." See, also, McHugh v. Jones & Laughlin Steel Co., 219 Pa., 644; Finan v. Sutch, 220 Pa., 379. Now, keeping in view these plain directions of the law, let us apply them to the present facts. It must be conceded that, in the construction of a building, carpenters must use ladders, and it is not disputed that the ladder, as made by the plaintiff and his co-employees, was like those commonly used in similar work. The plaintiff concedes that he and his fellow-carpenters made the ladder,-not, so far as the evidence discloses, according to the direction of the defendant or his foreman, but in the manner in which their judgment dictated it should be done. That the work was not badly done is shown by the fact that bricklayers, hod-carriers, plasterers, carpenters and others for months used the ladder daily. The plaintiff himself, though knowing it to be dangerous, used it many times, and without protest. That it was, up to the time of the accident, apparently in good condition, is evidenced by the conduct of the plasterer, who, but a moment before, went down and up it in safety. Under such circumstances, how could the defendant, or his foreman, have knowledge of any defect, when the plaintiff, who had a better opportunity to observe, was not aware that the rung was loose? This we think is, of itself, a full answer to the plaintiff's claim. In Pittsburgh & Connellsville R. R. Co. v. Sentmyer, 92 Pa., 276, it was said that, "when men are hired, something Let us, then, turn once more to the facts of this case. The plaintiff was told by the foreman to go up the ladder to the platform to assist a metal-worker who was working at the window. He took his tools in his right hand, and, with his left hand only for support, he, step by step, ascended the ladder. The sections of the ladder appear to have been firmly joined together and braced, but when he had reached a point about thirty-five feet from the ground, a rung which he grasped to sustain his weight pulled out, and as he could not use his right hand to save himself because it carried his tools, he fell to the ground. It seems to us that, knowing, as he says he did, that it was dangerous to thus ascend such a ladder, he largely contributed to his unfortunate accident. If he had fastened his tools in some way and kept his right hand free, it is almost certain that he would have escaped unhurt. Upon both grounds, thus stated, we think the plaintiff was not entitled to recover, and that the judgment of non-suit was properly entered. We, therefore, have concluded to discharge this rule. Rule discharged. Schoenberger v. Spencer, Executor of Cook. Life insurance - Change of beneficiary Creditor Transfer of policy Insurable interest-Value of board. A creditor has an insurable interest in the life of a debtor if the debt, interest, and premiums would have amounted to approximately the amount of the policy if the insured would have lived out his expectency of life and this is a question for the court. The court may find the value of board as at least the lowest usually charged in the vicinity when the same is essential in the case and not proven. The failure of an insurance company to approve a change of beneficiary can only be taken advantage of by the company. On the trial of an action depending on the transfer of insurance policies it is not error for the trial judge to refuse to charge that to make such required greater mental capacity than to make a will where proper instructions were given as to what mental capacity was required. Rules for new trial and for judgment for defendant n. o. v. C. P. of Lancaster Co. August Term 1914, No. 39. B. F. Davis, for rule. Chas. W. Eaby, contra. Company, admitting its liability, paid the amount, viz: $196.23, into this Court, so that it might be decided which of the two claimants is entitled to the fund. This issue was granted for that purpose. The jury found a verdict in favor of the plaintiff, and we are now asked to enter judgment for the defendant non obstante veredicto, for the reason, as alleged, that the plaintiff had no insurable interest in the life of the insured, and that having paid premiums on the policy, such interest is necessary to entitle her to recover. The testimony at the trial showed that Edward Cook, a man about forty years of age, had two small policies of insurance on his life in which his father, who died April 1912, was named as beneficiary. Edward Cook was not in good health; was addicted to the use of morphine, and was unable to work or support himself. He boarded with the plaintiff from September 1912 until his removal to the hospital, a short time prior to his death, which occurred on January 25, 1914. This was testified to by three witnesses, and was not denied. He never paid the plaintiff for this boarding. About a year before his death he told the agent of the Company that he could no longer pay the premiums, which were only ten cents a week, and from that time on the plaintiff paid them. Some time afterwards he told the same agent, “I want you to change these policies of mine. My father is named as beneficiary, and he is dead. Mrs. Schoenberger is taking care of me, and I am making my home with her, and I want you to have them changed to make her beneficiary." Another wit March 27, 1915. Opinion by HAS-ness, a son of the plaintiff, testified that SLER, J. The Metropolitan Life Insurance Company issued two policies on the life of Edward Cook, deceased, one dated October 17, 1892, and the other dated June 16, 1892. Upon the death of the insured both the plaintiff, who is named as beneficiary in the policies, and the defendant, who is the Executor of the insured's last will, claimed the amount due upon these policies. The Insurance about a year before his death he heard Edward Cook say he wanted the plaintiff to take the policies as "he was not capable of taking care of them any more; there was no income no more; and he knew mother would give him a good burial if she had the policies." The agent of the Company gave two blank changes of beneficiary to Edward Cook, who signed them on January 5, 1914. They were signed and given to the agent on the same day by the plain tiff, who at the same time paid the premiums that were then due. One of them was approved by the Company at once. The other was returned because the name of the insured as signed was not spelled as it was written in the policy. He signed it as his name appeared in the policy on January 19, 1914. It does not appear to have been approved by the Company prior to his death. Both these changes of beneficiary as between Laura Schoenberger, the plaintiff, and any one except the Insurance Company, were effective if at all, on January 5, 1914, when he first signed them. The subsequent correction of the signature in one of them did not affect the interests of the plaintiff. Her rights except as against the Company, if it saw fit to object to their not being approved, were fixed by the signing of them on January 5, 1914. Approval by the Company was not necessary to make them valid. Approval was for the Company's own protection, and no one else could question it: Ramsey v. Myers, 6 D. R. 468; Wirt's Estate, 20 D. R. 237. National Mutual Aid Society v. Lipold, 101 Pa. 111 and Jinks v. Banner Lodge 139 Pa. 414, cases cited at the argument are not in conflict with this. Her payment, therefore, of premiums on January 5, when she gave the changes of beneficiary to the agent must necessarily have been after they were signed, and were such payments of premiums by her as beneficiary of the policy as makes it necessary for her to have an insurable interest to entitle her to her verdict. Does the testimony show that the plaintiff had such an insurable interest in the life of Edward Cook as to enable her to be the beneficiary of the policies of insurance on his life? An insurable interest is defined to be such an interest in the insured, either as creditor or surety of his, or from ties of blood or marriage to him as will justify a reasonable expectation of advantage or benefit from the continuance of his life. If one named as beneficiary in the policy, who has paid premiums upon it, have no such insurable interest in the life of the insured, the policy is a wagering contract against public policy and void: Corson's Appeal, 113 Pa. 438; Keystone Mutual Benefit Association v. Norris, 115 Pa. 446; U. B. Mutual Aid Society v. McDonald, 122 Pa. 324. A creditor who has an insurable interest in the life of a debtor, it is well settled, may take out a policy of insurance on his life in such sum as will reasonably secure the debt. What such sum is depends upon the circumstances of each case. The amount of the debt, the age of the insured, his expectation of life, are important circumstancs. The fact that if the insured should die soon after the policy is issued the creditor would obtain an amount greatly in excess of his claim and interest and premiums paid does not invalidate the policy. It is good if the debt and interest and premiums would have amounted to a sum approximately as much as the policy calls for if the insured should have lived out his expectancy of life. This test is fixed by the Supreme Court in Ulrich v. Reinoehl, 143 Pa. 238, Wheeland v. Atwood, 192 Pa. 237. In Ulrich v. Reinoehl, supra, the debt was $110, the policy $3,000, the insured's age 42 years. In Wheeland v. Atwood, supra, the debt was $1900, the policy $5,000, the age of the insured 43 years. In Corson's Appeal, 113 Pa. 438, the debt was $750, the policy was $3,000, the age of the insured does not appear. In Grant v. Kline, 115 Pa. 618, the debt was $743, the policy was $3,000, the age of the insured 65 years. In McHale v. McDonnell, 175 Pa. 632, the debt was $700, the policy $2,000, the age of the insured not given, nor was there anything to show his expectancy of life at the time of assignment. In each of these cases the creditor received an amount greatly in excess of his claim because the insured did not live out his expectancy of life, but the Courts decided as a question of law that the policies were good, for the reason that the amount of each policy was approximately what the debt with interest and premiums would have amounted to had the insured lived out his expectancy of life. These cases also decide that this is a question of law for the Court, and not one of fact for the jury. In this case it was shown that the plaintiff advanced the insured money to pay the premiums for a year or more prior to his death. that he boarded with her about sixteen months prior to his death, and had paid nothing for such boarding. Neither the relationship between the plaintiff and the insured, nor any other circumstance rebutted the presumption that the boarding was furnished on the insured's implied promise to pay for it, so that she was a creditor of the insured. There is nothing to show what his expectancy of life was. He was forty years of age, though not in good health. The value of about sixteen months' board was not proven, but this was not necessary to justify our finding that it was worth at least the lowest price which is usually charged for boarding in this vicinity: Hart v. Drumm, 55 Sup. 457; Bash v. Bash, 9 Pa. 260; Jones's Appeal, 62 Pa. 324; Hartman v. Inclined Plane Co. 159 Pa. 442. She also promised to pay his funeral expenses. The amount due and paid on the policies was $196.23. Under all these circumstances we are compelled to find that the naming of the plaintiff as beneficiary in the policies was not a wagering contract; that she had such an insurable interest in the life of the insured as would entitle her to become the beneficiary in the policies in question, and that the amount which he owed her was as much if not more than the amount of the policies, even though no interest is charged upon it, or the insured had no expectancy of life. We think she is entitled to her verdict, and discharge the rule for judgment non obstante veredicto. We do not think there is anything in the reasons for a new trial which would justify us in making the rule absolute. The first reason is that we erred in not instructing the jury that it required. greater strength of mind to assign the insurance policies to the plaintiff than it would have required to make a will. We do not think it would have been proper for us to have given the jury any comparative statement, as to what mental capacity was necessary, unless we explained to them just what was necessary for one to make a will. This would probably have resulted in confusing them as to the correct standard. We think we correctly instructed them as to what mental capacity was necessary on the part of the insured to make him capable of changing the beneficiary in the policy, and the jury found by their verdict that the capacity he had, measured up to that standard. The second reason is to the effect that the changes of beneficiaries were not valid because the Company had not approved them. Approval by the Company was for its own protection, and cannot be questioned or objected to by any one else. It is just as binding against third parties when not approved as when approved: Wirt's Estate, 20 D. R. 237. The third and fourth reasons do not state the facts in accordance with the testimony. The signatures to both of the changes of beneficiary were proven, each one by one witness. There is no proof that either was traced or written by a person other than the insured. The sixth and seventh reasons are questions of law for the Court, which we have passed upon in disposing of the rule for judgment non obstante veredicto. Rule for a new trial discharged. O. C. ADJUDICATIONS. Thursday, March 25, 1915. Thursday, April 1, 1915. Edwin S. Becker, West Cocalico. Mathias M. Myers, Providence. William Pennell, Little Britain. Nicholas Danner and Clara Huber, of Paradise. |