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the latter date, he was ordered by the de- , wide by one inch thick, over the joints. fendant's foreman to do certain work, They then braced the ladder at several and, while ascending a ladder, one of the points. When the third section was put rungs pulled out, and he fell to the floor on, they fastened it in the same way. below. The result of the unfortunate For the brick-layers, the ladder was accident was, that his back was broken, placed facing east, straight up and down; and he has been unable since to walk, but, six weeks or two months before the and, of course, he cannot follow his for- accident, it was loosened from the scafmer calling

fold and slanted south, as above stated. The story of the accident, as told by The plaintiff had used it very often; in the plaintiff, was, that John Elsen, the fact, every day. He states that he took foreman of the defendant, called to him a brace and bit, a hatchet and a saw in to climb the ladder, in order to make his right hand, and used his left hand some alterations on the window, where to hold on to the ladder, and, in this an iron-worker had been waiting for manner, ascended it, although he admits him for some time; that he ascended the he knew that a ladder of that kind, thus ladder in order to do it, carrying his ascended, was dangerous. It seems that tools in one hand, and using the other a rung pulled out of the third section, hand to climb; that, when he was up and that was what threw him down. about thirty-five feet, a rung came loose, A minute or two before the accident, and he fell. It was a long ladder,- Samuel Gray, a plasterer, who had forty-two feet, -made out of three by dropped his pointer, went down the ladfour-inch stuff for uprights, and one by der, and returned with it; and, within two-inch stuff for rungs, which were five minutes after the plaintiff fell, annailed, for thirty-two feet, ten inches other plasterer went down the ladder. apart, on the outside of the ladder. The latter found a rung gone. There were two sections, sixteen feet It is upon these facts

that the plaintiff each. The remainder of the ladder was must recover, if at all; and, as we made out of an old piece, which had been deemed them insufficient, a judgment of used before on different jobs, and this non-suit was entered. We are now had twelve-inch spaces, and was also asked to reconsider the question and perspliced. The ladder stood on the east mit the case to be passed upon by a jury. end of the main bank room. The hod- In Stitzel v. Wilhelm Co., 220 Pa., carriers and brick-layers had used a 564, it is said that, "in this state, the law part of it, and, as the building pro- is settled that an employee, in accepting gressed, it was lengthened. While the employment, assumes all risks ordinarily plaintiff said it was rather dark in the incident thereto, and all other risks open

that the windows had no glass and obvious, the dangerous character of in them, and they were shut in with which he has had an opportunity to obwhite muslin, there is no evidence that serve: Dooner v. Canal Co., 171 Pa., this in any way contributed to the acci- 581; Boyd v. Harris, 176 Pa., 484; Nuss dent. The window at which the work v. Rafsnyder, 178 Pa., 397; Fulford v. was to be done was about fifteen feet Railroad Co., 185 Pa., 329.” And in high, and from fifteen to twenty feet Dellasala v. Josephine Furnace & Coke wide. The ladder, at the bottom, stood Co., 242 Pa., 591, it was held that, six or seven feet away from the wall, “where risks incidental to employment, the scaffold or platform being between. which are quite as well understood by The plaintiff and other carpenters em- the employee as by the employer, are inployed on the work joined the ladder to-curred by the employee, and from his gether and put it up. He does not recol- familiarity with such risks, such emlect whether or not they made it. They ployee is equally able to measure the first raised up a sixteen-foot section, danger with his employer, no liability and then added the second sixteen-foot will attach to the employer for injuries section later, nailing cleats, at least sustained by the employee in consethree or four feet long and four inches quence 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

Now, keeping in view these plain di- they make the place safe.” In Staebler v. rections of the law, let us apply them to Warren-Ehret Co., 223 Pa., 129, it is the present facts. It must be conceded also said that “the duty to provide a safe that, in the construction of a building, place in which to work does not extend carpenters must use ladders, and it is not to the guarding of each place to which disputed that the ladder, as made by the the workmen may be sent to do a parplaintiff and his co-employees, was like ticular piece of work. The employer's those commonly used in similar work. duty is performed by providing adequate The plaintiff concedes that he and his means of making the place reasonably fellow-carpenters made the ladder,not, safe. He is not required to supervise 50 far as the evidence discloses, accord- the details of the work, and he is not ing to the direction of the defendant or responsible for an error of judgment by his foreman, but in the manner in which competent foreman who is in charge of their judgment dictated it should be the work.” See, also, McHugh v. Jones done. That the work was not badly & Laughlin Steel Co., 219 Pa., 644; done is shown by the fact that brick- Finan v. Sutch, 220 Pa., 379. layers, hod-carriers, plasterers, carpen- Let us, then, turn once more to the ters and others for months used the lad- | facts of this case. The plaintiff was der daily. The plaintiff himself, though told by the foreman to go up the ladder knowing it to be dangerous, used it many to the platform to assist a metal-worker times, and without protest. That it was, who was working at the window. He up to the time of the accident, apparently took his tools in his right hand, and, with in good condition, is evidenced by the his left hand only for support, he, step conduct of the plasterer, who, but a mo- by step, ascended the ladder. The secment before, went down and up it in tions of the ladder appear to have been safety. Under such circumstances, how firmly joined together and braced, but could the defendant, or his foreman, when he had reached a point about thirhave knowledge of any defect, when the ty-five feet from the ground, a rung plaintiff, who had a better opportunity which he grasped to sustain his weight to observe, was not aware that the rung pulled out, and as he could not use his was loose? This we think is, of itself, right hand to save himself because it cara full answer to the plaintiff's claim. ried his tools, he fell to the ground. It

In Pittsburgh & Connellsville R. R. seems to us that, knowing, as he says he Co. v, Sentmyer, 92 Pa., 276, it was said did, that it was dangerous to thus ascend that, “when men are hired, something I such a ladder, he largely contributed to

his unfortunate accident. If he had | Company, admitting its liability, paid fastened his tools in some way and kept the amount, viz: $196.23, into this Court, his right hand free, it is almost certain so that it might be decided which of that he would have escaped unhurt. the two claimants is entitled to the fund.

Upon both grounds, thus stated, we This issue was granted for that purpose. think the plaintiff was not entitled to re- The jury found a verdict in favor of cover, and that the judgment of non-suit the plaintiff, and we are now asked to was properly entered. We, therefore, enter judgment for the defendant non have concluded to discharge this rule. obstante veredicto, for the reason, as alRule discharged.

leged, 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 Schoenberger v. Spencer, Executor of Cook. to recover. Life insurance Change of beneficiary

The testimony at the trial showed that Transfer of policy Creditor

Edward Cook, a man about forty years Insurable interest-Value of board.

of age, had two small policies of insur

ance on his life in which his father, who A creditor has an insurable interest in the died April 1912, was named as benelife of a debtor if the debt, interest, and ficiary. Edward Cook was not in good premiums would have amounted to approxi- health ; was addicted to the use of mormately the amount of the policy if the insured would have lived out his expectency of phine, and was unable to work or suplife and this is a question for the court. port himself. He boarded with the

The court may find the value of board as plaintiff from September 1912 until his at least the lowest usually charged in the removal to the hospital, a short time vicinity when the same is essential in the case and not proven.

prior to his death, which occurred on The failure of an insurance company to January 25, 1914. This was testified approve a change of beneficiary can only be to by three witnesses, and was not detaken advantage of by the company. On the trial of an action depending on

nied. He never paid the plaintiff for this the transfer of insurance policies it is not boarding About a year before his death error for the trial judge to refuse to charge he told the agent of the Company that that to make such required greater mental he could no longer pay the premiums, capacity. than to make a will where proper which were only ten cents a week, and instructions were given as to what mental capacity was required.

from that time on the plaintiff paid

them. Some time afterwards he told Rules for new trial and for judgment the same agent, “I want you to change for defendant n. 0. V. C. P. of Lancas- these policies of mine. My father is ter Co. August Term 1914, No. 39. named as beneficiary, and he is dead.

Mrs. Schoenberger is taking care of me, B. F. Davis, for rule.

and I am making my home with her,

and I want you to have them changed to Chas. W. Eaby, contra.

make her beneficiary.” Another witMarch 27, 1915. Opinion by Has- ness, a son of the plaintiff

, testified that

about a year before his death he heard SLER, J.

Edward Cook say he wanted the plainThe Metropolitan Life Insurance tiff to take the policies as "he was not Company issued two policies on the life capable of taking care of them any more; of Edward Cook, deceased, one dated there was no income no more; and he October 17, 1892, and the other dated knew, mother would give him a good June 16, 1892. Upon the death of the burial if she had the policies.” insured both the plaintiff, who is named The agent of the Company gave two as beneficiary in the policies, and the blank changes of beneficiary to Edward defendant, who is the Executor of the Cook, who signed them on January 5, insured's last will, claimed the amount 1914. They were signed and given to due upon these policies. The Insurance the agent on the same day by the plaintiff, who at the same time paid the pre- and void : Corson's Appeal, 113 Pa. 438; miums that were then due. One of Keystone Mutual Benefit Association v. them was approved by the Company at Norris, 115 Pa. 446; U. B. Mutual Aid once. The other was returned because Society v. McDonald, 122 Pa. 324. the name of the insured as signed was A creditor who has an insurable innot spelled as it was written in the policy. terest in the life of a debtor, it is well He signed it as his name appeared in the settled, may take out a policy of insurpolicy on January 19, 1914. It does not ance on his life in such sum as will reaappear to have been approved by the sonably secure the debt. What such Company prior to his death.

sum is depends upon the circumstances Both these changes of beneficiary as of each case. The amount of the debt, between Laura Schoenberger, the plain- the age of the insured, his expectation tiff, and any one except the Insurance of life, are important circumstancs. The Company, were effective if at all, on fact that if the insured should die soon January 5, 1914, when he first signed after the policy is issued the creditor them. The subsequent correction of the would obtain an amount greatly in exsignature in one of them did not affect cess of his claim and interest and prethe interests of the plaintiff. Her rights miums . paid does not invalidate the except as against the Company, if it saw policy. It is good if the debt and interfit to object to their not being approved, est and premiums would have amounted, were fixed by the signing of them on to a sum approximately as much as the January 5, 1914. Approval by the Com- policy calls for if the insured should pany was not necessary to make them have lived out his expectancy of life. valid. Approval was for the Company's This test is fixed by the Supreme Court own protection, and no one else could in Ulrich v. Reinoehl, 143 Pa. 238, question it: Ramsey v. Myers, 6 D. R. Wheeland v. Atwood, 192 Pa. 237. 468; Wirt's Estate, 20 D. R. 237;. Na- ' In Ulrich v. Reinoehl, supra, the debt tional Mutual Aid Society v. Lipold, 101 was $110, the policy $3,000, the insured's Pa. III and Jinks v. Banner Lodge 139 | age 42 years." In Wheeland v. Atwood, Pa. 414, cases cited at the argument are supra, the debt was $1900, the policy not in conflict with this. Her payment, $5,000, the age of the insured 43 years. therefore, of premiums on January 5, In Corson's Appeal, 113 Pa. 438, the when she gave the changes of beneficiary debt was $750, the policy was $3,000, the to the agent must necessarily have been age of the insured does not appear. In after they were signed, and were such Grant v. Kline, 115 Pa. 618, the debt was payments of premiums by her as bene- $743, the policy was $3,000, the age of ficiary of the policy as makes it neces- the insured 65 years. In McHale v. sary for her to have an insurable inter- McDonnell, 175 Pa. 632, the debt was est to entitle her to her verdict. Does $700, the policy $2,000, the age of the the testimony show that the plaintiff insured not given, nor was there anyhad such an insurable interest in the life thing to show his expectancy of life at of Edward Cook as to enable her to be the time of assignment. In each of the beneficiary of the policies of insur- these cases the creditor received an ance on his life?

amount greatly in excess of his claim An insurable interest is defined to be because the insured did not live out his such an interest in the insured, either expectancy of life, but the Courts deas creditor or surety of his, or from ties cided as a question of law that the of blood or marriage to him as will jus- policies were good, for the reason that tify a reasonable expectation of advant- the amount of each policy was approxiage or benefit from the continuance of | mately what the debt with interest and his life. If one named as beneficiary in premiums would have amounted to had the policy, who has paid premiums upon the insured lived out his expectancy of it, have no such insurable interest in life. These cases also decide that this the life of the insured, the policy is a is a question of law for the Court, and wagering contract against public policy not one of fact for the jury.

In this case it was shown that the for one to make a will. This would plaintiff advanced the insured money to probably have resulted in confusing them pay the premiums for a year or more as to the correct standard. We think we prior to his death. that he boarded with correctly instructed them as to what her about sixteen months prior to his mental capacity was necessary on the death, and had paid nothing for such part of the insured to make him capable boarding. Neither the relationship be- of changing the beneficiary in the policy, tween the plaintiff and the insured, nor and the jury found by their verdict that any other circumstance rebutted the pre- the capacity he had, measured up to that sumption that the boarding was fur- standard. nished on the insured's implied promise The second reason is to the effect that to pay for it, so that she was a creditor

the changes of beneficiaries were not of the insured. There is nothing to valid because the Company had not apshow what his expectancy of life was proved them. Approval by the ComHe was forty years of age, though not | pany was for its own protection, and in good health. The value of about six- cannot be questioned or objected to by teen months' board was not proven,

any one else.

It is just as binding this was not necessary to justify our against third parties when not approved finding that it was worth at least the as when approved: Wirt's Estate, 20 lowest price which is usually charged D. R. 237. for boarding in this vicinity: Hart v. The third and fourth reasons do not Drumm, 55 Sup. 457; Bash v. Bash, 9 state the facts in accordance with the Pa. 260; Jones's Appeal, 62 Pa. 324; testimony. The signatures to both of Hartman v. Inclined Plane Co. 159 Pa. the changes of beneficiary were proven, 442. She also promised to pay his each one by one witness. There is no funeral expenses. The amount due and proof that either was traced or written paid on the policies was $196.23. Under by a person other than the insured. all these circumstances we are compelled

The sixth and seventh reasons are to find that the naming of the plaintiff questions of law for the Court, which as beneficiary in the policies was not a we have passed upon in disposing of the wagering contract; that she had such an rule for judgment non obstante veredicto. insurable interest in the life of the in- Rule for a new trial discharged. sured 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 0. C. ADJUDICATIONS. interest is charged upon it, or the insured had no expectancy of life. We Thursday, March 25, 1915. think she is entitled to her verdict, and discharge the rule for judgment non

George R. Kendig, Manor. obstante veredicto.

David Baker, East Hempfield. We do not think there is anything in Mary White, Columbia Borough. the reasons for a new trial which would Susan Musser, City. justify us in making the rule absolute.

Annie L. Bradley, Rapho. The first reason is that we erred in not

Eva C. Knapp, City. instructing the jury that it required greater strength of mind to assign the

Thursday, April 1, 1915. insurance policies to the plaintiff than it would have required to make a will. Edwin S. Becker, West Cocalico. We do not think it would have been

Mathias M. Myers, Providence. proper for us to have given the jury any

William Pennell, Little Britain. comparative statement, as to what mental capacity was necessary, unless we ex

Nicholas Danner and Clara Huber, of plained to them just what was necessary | Paradise.

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