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action, but the legitimate scheme of life * * * Public policy requires that a person insurance is inclined to be distorted and to having no insurable interest in the life of ansome it affords an invitation for a mis- such life and thereby become interested in its

other shall not be permitted to speculate on chievous kind of gambling. To avoid this early termination; but public policy does not misuse of a most useful character of under- forbid a person from in good faith making protaking, in which a beneficiary may become vision for the future of another in whom he

may be interested, even though the latter may interested in the early death of the insured, noť have an insurable interesť in his life.” it is held that the insurance upon a life

To the same effect are the decisions of the shall be effected and resorted to only for Supreme Court of Pennsylvania. In Downey some benefit incident to or contemplated by v. Hoffer, 110 Pa. 109, 20 Atl. 655, referring the insured, and that insurance procured up-to Scott v. Dickson, 108 Pa. 6, 56 Am. Rep. on a life by one or in favor of one under

192, it is said: circumstances of speculation or hazard

"A man may insure his own life and direct amounts to a wager contract and is therefore that the insurance money be paid to anybody he void, upon the theory that it contravenes pleases-whether that person has any insurable public policy. Just what constitutes a wager interest or not-the insured paying the premicontract and therefore a void contract of in-origin or continuance of such a contract, as contract and therefore a void contract of in- ums. There is nothing speculative either in the surance, varies with the different circum- long as the insured keeps it within his control stances of each case and the different prin- and pays the premium himself;" etc. ciples of law applicable thereto. ·

[5] The authorities for these propositions The presence of an insurable interest on of law are cited in a note to the case of Dolan the part of the beneficiary is urged as a re- v. Association, 16 L. R. A. (N. S.) 555, in quest to avoid the appearance of a wager which the law is concisely stated as follows: contract, holding that without such an in- "With one or two possible exceptions, the terest, the interest of the beneficiary is specu-courts all agree that, in case the transaction lative. An insurable interest in the bene-is bona fide, a person may take insurance upon

An insurable interest in the bene- his own life for the benefit of one having no ficiary may be shown by proof of the fact of insurable interest in his life; and that the latrelationship between the beneficiary and the ter may collect and hold the amount which beinsured within certain degrees, and by proof comes due upon the policy. * * * of pecuniary interest, such as arise between without legal' insurable interest in the life of

“The general rule that, although a person partners and between debtors and creditors. another may not procure insurance upon the Evidence of such an insurable interest is evi- life of such other, the person insured, in the dence that the contract is not a wager and absence of bad faith, may himself contract di

and is evidence of the contract's validity. But payable to whomsoever he will, regardless of a contract of life insurance may be a valid the party's insurable interest. * contract though the beneficiary be without Assur. Soc. [190 N. Y. 111, 82 N. E. 734], su

"As is said in Reed v. Provident Say. Life an insurable interest, because no longer does pra: 'What will distinguish the one contract the presence or absence of an insurable inter- from the other is the fact as to the party acest of the beneficiary alone control the ques- tually contracting with the insurer; and the tion whether the contract is valid or void. cordingly.'

distinction is substantial and controlling acIf the beneficiary has an insurable interest "The doctrine is based upon the theory that and the transaction is otherwise legal, the it is not reasonable to suppose that a person policy is valid; if he has not such an interest, ulation, or be tempted to take his own life in

will insure his own life for the purpose of specthe policy may still be valid, if the transac-order to secure the payment of money to antion is bona fide and free from speculation. other, or designate as the beneficiary a person

The rules of law as gathered from the cas- interested in the destruction, and not in the es and to be applied by you to the facts of felter (Morgan v. Segenfelter) [127 Ky._348,

continuance, of his own life. Hess v. Segenthis case, are these:

105 S. W. 476], 32 Ky. Law Rep. 225, 14 L. R. Mr. Justice Brown, of the Supreme Court A. (N. S.) 1172 [128 Am. St. Rep. 343]. * * * of the United States, in Langdon v. Union contract is to determine by whom the premiums

“One of the tests as to the validity of the Mut. L. Ins. Co. (C. C.) 14 Fed. 272, said: are to be paid. If the one taking the insurance

“There is no case, to my knowledge, which pays the premiums, the transaction is generalholds that a party may not insure his own life | ly upheld. But there is a strong, though not and make the policy payable to any one he may universal, tendency to condemn contracts in select, though such person have no legal inter- which the premiums are paid by the benefiest in his life." In Lamont v. Grand Lodge I. L. H. [C. C.]

[6] Giving consideration to this instruction 31 Fed. 177, Justice Shiras, of the Supreme upon the law, we say to you, that if you find Court of the United States, says:

that the contract of insurance sued upon was “Where a third party, without any insurable procured and entered into by Hanlin, the ininterest in the life of another, procures a pol- sured, and the premiums were paid by Hanicy of insurance on the life of such person, ei-lin, the insured, either personally or through ther by having a policy issued directly to himself, or by having the person whose life is in his agent, and the circumstances otherwise sured take out a policy to himself, and then indicate a bona fide nonspeculative transacassign it, these facts, as is held in Warnock v. tion, the contract cannot then be held a gamDavis [104 U. S. 775, 26 L. Ed. 924), conclu- bling contract, and your verdict should be sively show that the transaction is a mere speculation on the life of another, and as such is for the plaintiff, for the amount of his claim, contrary to public policy, and therefore void. and interest, whether the plaintiff, as benefi

* *


ciary, had or had not an insurable interest in s terdict, from holding in the building services the life insured for him. If, however, you similar to those of the Roman Catholic Church, find that the plaintiff had an insurable inter- obtained a revocation of the interdict, and then est in the life of the insured, in the manner ducting services in the church, and the other

again sought to enjoin such priest from conbefore defined to you, evidence of such an in- members from installing therein any minister surable interest is evidence which you may other than an ordained priest of the Roman consider in connection with all the other evi- property to worship other than that prescribed

Catholic Church, and from diverting the church dence in the case, in determining the good by that church. Held that, since the interdict faith of the transaction and in reaching a ver was a disciplinary measure not affecting a didict for the plaintiff. But if you find that which it had been dedicated, plaintiffs, though

version of the property from the purposes for the plaintiff had no insurable interest in the having no standing to complain while the interlife of the insured, that is, he was not related dict was in force, were entitled, with the interto the insured as a relation or in a friendly dict removed, to the relief prayed for. way, and that the plaintiff procured or was

[Ed. Note.-For other cases, see Religious the instrumentality in procuring the contract Societies, Cent. Dig. $8 111-129; Dec. Dig. $

18.*] of insurance for the insured, but in his own favor as beneficiary, and that the contract

Appeal from Court of Common Pleas, Lack

awanna County. was not procured by the insured and the premiums thereon were not paid by him or by others against Anthony Krauczunas and oth

Bill for injunction by Joseph Novicky and his agent with his money or upon his obliga

. tion, you may find the transaction void as a ers. From an order continuing preliminary wager transaction and then your verdict injunction, and final decree for plaintiffs, deshould be for the defendant.

fendants appeal. Affirmed. The last question for your decision rests The facts appear in the opinion of the Suupon the life or death of the insured. If you preme Court, and in Krauczunas v. Hoban, find that Hanlin is not dead, that being the 221 Pa. 213, 70 Atl. 740; Mazaika v. Krauccontingency in any event upon which the de- zunas, 233 Pa. 138, 81 Atl. 938; and Novickas fendant is liable to make payment, your ver- v. Krauczunas, 240 Pa. 248, 87 Atl. 686. dict, of course, should be for the defendant. Argued before FELL, C. J., and BROWN,

[7] This, gentlemen, is a civil case, and it is MESTREZAT, ELKIN, and STEWART, JJ. distinguished in its mode of proof from crimi

William J. Hand and A. A. Vosburg, both nal cases. In a case of this character the of Scranton, for appellants. John G. Johnburden of proving, the legality of the contract, son, of Philadelphia, and T. P. Hoban and the performance of the conditions precedent John P. Kelly, both of Scranton, for apon the part of the plaintiff and the liability pellees. of the defendant therein, rest upon the plaintiff. And that he must prove, not as in crimi- STEWART, J. This protracted controvernal cases beyond a reasonable doubt, but by sy had its inception in the refusal of the what is termed the preponderance of the evi- bishop of the diocese within the bounds of dence.

which was included St. Joseph's Lithuanian [8] If you find the evidence to be conflict- Catholic Church, and to whom the title of ing, it is your duty to reconcile it if you can, the property of the said St. Joseph's Lithuand if you cannot, you should reject that tes- anian Catholic Church had been conveyed for timony which you consider least worthy of a special and temporary use, to reconvey the credit and accept that which you consider to same to the trustees of the congregation in be most worthy of credit, and in doing so you accordance with the express desire of a mashould have regard to the intelligence, the jority of the adult members of the congreunderstanding, the interest or the bias of the gation at a meeting regularly called, on the witnesses, and their ability to see, compre- ground, as claimed, that under the canons of hend and remember that to which they have the Roman Catholic Church the title to all testified.

church property is required to be in the

name of the bishop of the diocese, to be held Verdict for plaintiff for $132.37.

by him, not for the particular congregation,

but for the church at large. This phase of (245 Pa. 86)

the controversy was before us in Krauczunas NOVICKY et al. v. KRAUCZUNAS et al. v. Hoban, 221 Pa. 213, 70 Atl. 740, which was (Supreme Court of Pennsylvania. April 20,

an appeal from a decree supporting the con1914.)

tention of the bishop, and we there held, reRELIGIOUS SOCIETIES (8 18*)-PROPERTY-IN-versing the decree of the court below, that JUNCTION.

under the provisions of the act of April 26, A Roman Catholic bishop, to whom the le- 1855 (P. L. 328), the title to the church propgal title of church property had been conveyed, after being required by a decree of court to erty was in the congregation of St. Joseph's convey the legal title to trustees appointed by Lithuanian Catholic Church regardless of the congregation, placed the church under an what the canons of the Roman Catholic interdict prohibiting the holding of worship Church required, and that the property was therein. Several members of the congregation, after unsuccessfully attempting to enjoin a subject to the control and disposition of the priest, appointed by members disobeying the in- I lay members of the congregation, but subject, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

91 A.-42

however, to all the terms and conditions up- / yet it can have no such worship so long as the on which the same may have been bequeath- church rests under episcopal interdict; and the ed, devised, or conveyed to such unincorporat- of the congregation will consent to an alienation

interdict will be removed only as the members ed church. We accordingly reversed the de- of their church property such as the law of the cree of the lower court and directed that a land forbids quite as expressly and explicitly decree be entered requiring that a convey as it does the diversion of church property to

to the property ance be executed by the bishop of the diocese was originally dedicated, and for which it must for the premises held by him in trust for St. be held. Deprived of the right of Catholic worJoseph's Lithuanian Catholic Congregation of ship in their own church by ecclesiastical authe city of Scranton to the plaintiffs, the thority' has no right to exact, and which the

thority, except upon conditions which that auregularly chosen trustees of the congrega congregation is protected by law in resisting, it tion, in trust for said congregation.

may well be questioned whether an abandonment In obedience to this decree Bishop Hoban of all religious worship in the church, under the

interdict, would not be quite as much a diverreconveyed the property to the trustees ap- sion of the property from its original uses as pointed by the congregation; but simultane- permitting religious services therein to be conously therewith he issued his episcopal decree ducted by ministers belonging to a different

communion. But we decide nothing as to that. placing St. Joseph's Church under an inter- What we do decide, and all we decide, is that, dict forbidding Catholic worship therein, and because the evidence in the case makes it apforbidding, under pain of ecclesiastical cen- parent that the purpose of the bill is to accompsure, any Catholic to enter the church soclared may not be done, the plaintiffs in the billo

lish indirectly that which we have repeatedly delong as the interdict remained unrevoked. have no standing to ask equitable relief. If

Next followed the case of Mazaika v. they desire to proceed further, their appeal must Krauczunas, 233 Pa. 138, 81 Atl. 938, which be first to the ecclesiastical authority which has

forbidden Catholic worship in the church for was an appeal by the trustees of the congre- rescission of the episcopal interdict that inhibgation from a decree of the lower court di- its it." recting a reconveyance of the church prop- Subsequently, 13th April, 1912, very shortly erty by the trustees to the bishop pursuant after the opinion in the case last referred to to a resolution adopted by a majority of the had been filed, the episcopal interdict forcongregation at a regularly called meeting. bidding Catholic worship in St. Joseph's We sustained the appeal, reversing the action Church was formally and publicly withof the court below, on the ground that the drawn, thus removing the only obstacle to action taken at the congregational meeting, the resumption of Catholic service in the as disclosed by the resolution adopted-to church. This was followed by a formal and which we refer without reciting-was a clear public revocation of a decree excommunicatattempt to invest the bishop with authority ing the trustees because of their resistance over the congregation's property which the to the demands of the bishop with respect to law expressly forbade.

the title to the church property. Thereupon So stood the case—the trustees appointed the present bill was filed by plaintiffs, memby the congregation holding the legal title bers of St. Joseph's Lithuanian Catholic to the property-when certain of the original Church at the time the episcopal interdict members of St. Joseph's Lithuanian Catholic was issued, on their own behalf, and on beChurch congregation, who, obeying and ob- half of all other members desiring to join serving the episcopal interdict, had refrained therein, setting forth the above facts, and from worshipping in St. Joseph's Church, and averring further that the defendants, nothad established a place of worship elsewhere, withstanding the removal of every obstacle filed a bill in which they alleged that the to the resumption of Catholic worship in the trustees of St. Joseph's Lithuanian Catholic church, persistently have refused to permit Church were permitting certain pastors or the regularly appointed pastor of the congreministers not regularly ordained priests of gation, and the only one acting under episcothe Catholic Church, in good standing, to of- pel authority in that relation, to conduct ficiate and conduct worship therein, and pray- services therein, and have persistently kept ing that such pastors and ministers be re- and maintained as pastor of the congregation strained from intermeddling with the tem- Rev. Stanislaus Mickiewicz, not ordained by poral or spiritual affairs of the congregation, or in communion with the Catholic Church, and that the trustees be restrained from in- but in communion with and holding alstalling in such church any pastor or min- legiance to another distinct ecclesiastical esister other than a regularly ordained min- tablishment, and praying that an injunction ister of the Catholic Church in good stand issue restraining the said Rev. Stanislaus ing. This bill was sustained in the court be- Mickiewicz from conducting religious worlow, and an injunction issued as prayed for. ship or service in said church or in any wise On an appeal (Novickas v. Krauczunas, 240 officiating as a member in said church, and Pa. 248, 87 Atl. 686) we again reversed the enjoining and restraining the other defendlower court. In the opinion filed in the case ants from installing in the church the said we said:

Rev. Stanislaus Mickiewicz, or any pastor or "The situation as thus presented is briefly minister other than a regularly ordained this: The congregation can have no other wor; priest of the Catholic Church in good standship in their church than that prescribed and authorized by the Catholic Church through a reg. ing, from establishing any form of worship ularly ordained priest in good standing; and therein other than that prescribed and authorized by said Catholic Church through a gregation owning the church property was in regularly ordained priest, and from diverting organic union with the Roman Catholic said church and property of said congrega- Church subject to its government and discition to any form of public worship other pline. The contention on part of the defendthan that prescribed and authorized by the ants is that this relation was severed by said Catholic Church. The answer to the bill episcopal action when the interdict was proadmits that from its inception the congrega- claimed. A clear corollary to this would be tion of St. Joseph's Church was in ecclesias- that, while the congregation may not divert tical relation and union with the Roman the property, which is its own, from the uses Catholic Church, and that since the erection and trusts to which it was originally dediof the church building the same has been cated, the bishop of the diocese by his episused by the congregation for public worship copal authority may-a deduction to which according to the rights of the Roman we cannot agree. The whole purpose of the Catholic Church down until by the episcopal interdict was disciplinary; it was a tempointerdict Catholic worship therein was for- rary suspension of the right of Catholic worbidden during the continuance in force of ship in the church with a view, as we found, the interdict. The contention made by the through exercise of ecclesiastical power, to answer is that:

accomplish a purpose on the part of the bish"The effect of the said interdict, issued in ac- op which we had condemned as against the cordance with the laws of the Roman Catholic law of the land. It was not intended to sepChurch, and the final refusal of the church au- arate the body of St. Joseph's congregation thorities in December, 1911, to remove the same, was to make the said St. Joseph's Lithuanian from the Roman Catholic Church, or to reCatholic Congregation an independent congrega- nounce for the congregation its claim to the in any manner subject to the jurisdiction of the church property. It would have been inefauthorities of the Roman Catholic Church.' fective had it been otherwise. So long as the

The court below awarded the injunction episcopal interdict was in force we declined as prayed for, and this appeal followed. to interfere, at the instance of those obeying While the answer contains much more than the interdict, to prevent those defying it from we have recited, what we have here given having a form of worship in the church of it states the whole question.

nearest akin to that which the interdict for

It avers that the episcopal interdict was not revoked bade; but now, with the interdict removed, in good faith; but into that question we will the appellees, emboldened perhaps by our innot enter, for the one sufficient reason that dulgence, openly assert their independence of whether in good or bad faith it has ef- the authority of the Catholic Church, and fectually removed the one and only consid- their purpose to devote the church property eration on which we based our recent deci- to other uses than those to which it was origsion in Novickas v. Krauczunas, supra. The inally devoted, by uniting the church to ancomplaint there was that defendants were other wholly separate and distinct church diverting the property from its original uses organization. For this no warrant can be by allowing other worship therein than that found in any of the decisions of this court. prescribed by the Catholic Church. We have Such of the complainants as were members distinctly asserted that it was not in the of St. Joseph's congregation when the interpower of the congregation to divert the prop- dict was issued remain members, notwitherty from its original use, but held that the standing they have meanwhile been worshipplaintiffs had no standing to ask equitable ping in another church, and as members they relief so long as the episcopal interdict, have an undoubted right to 'protest against which prevented defendants from having any diversion of the church property to other Catholic worship in the church, was in force, than its original uses. and that their appeal must first be to the

The assignments of error are accordingly ecclesiastical authority which had forbidden overruled, and the decrees are affirmed, at the Catholic worship in the church for rescission cost of the appellants. of the interdict that prescribed it. Nothing can be found in any of the opinions of this

(245 Pa. 326) court touching this controversy from first to KESTNER et al. v. HOMEOPATHIC MEDlast which gives even the slightest warrant ICAL & SURGICAL HOSPITAL for supposing that any departure was intend

OF READING. ed from the settled rule that forbids a diver- (Supreme Court of Pennsylvania. May 18, sion of property of a religious society from

1914.) the uses, purposes, and trusts to which it 1. NUISANCE (8 3*) - INJUNCTION - MAINTEmay have been lawfully dedicated. It is a NANCE OF HOSPITAL. fact, if not expressly admitted too clear for conducting' its hospital to the injury of com

Where, in a suit to enjoin defendant from contradiction, that St. Joseph's Lithuanian plainants, who owned a residence situated but Catholic Church of Scranton was originally a few feet distant from the hospital, it appeardedicated and devoted to Christian worshiped that objectionable noises and cries of pain according to the rights and regulations of the day and at night and depreciated the value of

of hospital patients disturbed complainants by Roman Catholic Church, and that the con- their property, the court properly enjoined de

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

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fendant from using its buildings as a hospital | original bill it was averred that complainants during the continuance of an existing internal were the owners of a house and lot of ground construction and while the emergency operating room was maintained in close proximity to such in the city of Reading, and that the defendresidence.

ant corporation owned adjoining ground, both [Ed. Note. For other cases, see Nuisance, north and south thereof, and had established Cent. Dig. $$ 4, 5, 9–25; Dec. Dig. $ 3.*] and maintained on the north a home for its 2. NUISANCE ($ 25*)-HOSPITALS-INJUNCTION hospital nurses, and on the south a hospital, -DEFENSE.

Where a hospital is conclusively shown to adjacent to the residence of complainants; be a nuisance, its status as a charitable institu- that the moans, shrieks, and groans of pertion is no defense, in an action to enjoin its sons receiving surgical aid in the rooms of maintenance.

the hospital, facing complainants' house, were [Ed. Note.-For other cases, see Nuisance, of such a character as to render wretched the Cent. Dig. $85, 60-63; Dec. Dig. § 25.*]

lives of complainants and of friends visiting 3. NUISANCE (8 3*) - INJUNCTION MAIN

them, and were such as to affect their nerves TENANCE OF HOSPITAL – INJURY TO ADJA- and impair their health; and that the manCENT PROPERTY.

Where, in a suit to enjoin defendant from agement and carrying on of the hospital renconducting its hospital to the injury of com- dered complainants' house unfit for residenplainants, who owned a residence situated a few tial purposes, depreciated its value in the mare! feet distant from the hospital, it appeared that persons occupying rooms under the control of ket, and inflicted irreparable injury. Eliza.. defendant were permitted to throw refuse on beth Kestner, one of the complainants, havcomplainants property, the court properly.en- ing died, the bill was amended to show that joined defendant from permitting the continu

fact, and an averment was added that deance of such acts.

[Ed. Note. For other cases, see Nuisance, fendant had annoyed and continued to annoy Cent. Dig. $$ 5, 60–63; Dec. Dig. $ 3.*] complainants by permitting persons occupy4. NUISANCE ($ 32*)-INJUNCTION-PLEADING ing rooms in the hospital to throw refuse -AMENDMENT.

across the party line fence and upon comAn amendment to a bill to enjoin defendant

plainants' property. from maintaining the emergency operating room of its hospital in close proximity to complain

The trial judge found as facts that the ants' dwelling house, which amendment averred building of complainants was partly threethat defendant allowed persons occupying rooms storied and partly two-storied, and had 21 to throw refuse on complainants' property, was windows and 9 doors facing defendant's hosproperly allowed, where it did not appear that defendant was in any way prejudiced thereby.

pital; the windows and all the doors, except [Ed. Note.-For other cases, see Nuisance, two, being from 9 to 12 feet distant from the Cent. Dig. $8 77–83; Dec. Dig. $ 32.*]

hospital building. The two doors were 17 5. APPEAL AND ERROR ($ 1041*)-HARMLESS feet distant. The rooms facing the hospital ERROR-AMENDMENT TO BILL.

included the parlor, living room, dining room, If permitting an amendment to a bill for kitchen, pantry, and summer kitchen on the an injunction tended to prejudice defendant because of its counsel's failure to examine the first floor, and sleeping rooms on the second amendment carefully and file an answer to new floor. The hospital has 48 windows facing matter, the prejudice was avoided where com complainants' property. A wooden fence plainants' counsel agreed that the answer filed should be considered as a denial of all the facts about nine feet high separates the two yards. contained in the amended bill.

The trial judge further founů: [Ed. Note. For other cases, see Appeal and “On the northern side of defendant's hospital Error, Cent. Dig. 88 4106_4109; Dec. Dig. $ facing the Kestner property were maintained, 1041.*]

among other things, a dispensary for dressing

surgical wounds and treating medical cases, an Appeal from Court of Common Pleas, Berks emergency operating room, private rooms for County.

patients, women's private ward, two public Injunction by George L. Kestner and an-ward with three beds, a delivery room with one

wards of ten beds each for women, a maternity other, executors of the last will and testament bed, and a main operating room. There were of Elizabeth Kestner, deceased, and others from 45 to 55 inmates constantly, and from 150 against the Homeopathic Medical and Sur- to 350 accident cases are treated per month, of

which the public ambulance brings 30 per gical Hospital of Reading. From a decree month. Prior to the filing of the plaintiff's bill, awarding an injunction, defendant appeals. and after the filing thereof, noises came to the Affirmed.

Kestner property from the defendant hospital, Argued before FELL, C. J., and BROWN, noises consisting of shrieks, groans, moans, and MESTREZAT, POTTER, and ELKIN, JJ.

yells of persons, and cries of children being opJoseph R. Dickinson, of Reading, for ap- 'erated upon, or in pain from other causes; the pellant. Cyrus G. Derr, of Reading, for ap- night, and almost daily, disturbing the family at pellees.

meals in the dining room, less than 13 feet from

the said operating room, disturbing their sleep POTTER, J. In this bill in equity, com- pital, suddenly waking them as late as 2 and 3

in the bedrooms facing the area and the hosplainants sought to have the defendant re- o'clock in the morning, and keeping them awake, strained from conducting its hospital in such making them nervous, and disturbing their coma manner as to unduly annoy and injure the fort and happiness and the comfort and happi

ness of guests invited to an entertainment in complainants, or to impair the value of their their house, and breaking up the party, and property adjoining the hospital. In the disturbing the last moments of the aged mother

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

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