|*** Public policy requires that a person having no insurable interest in the life of ansuch life and thereby become interested in its other shall not be permitted to speculate on early termination; but public policy does not forbid a person from in good faith making provision for the future of another in whom he may be interested, even though the latter may not have an insurable interest in his life."

To the same effect are the decisions of the

action, but the legitimate scheme of life insurance is inclined to be distorted and to some it affords an invitation for a mischievous kind of gambling. To avoid this misuse of a most useful character of undertaking, in which a beneficiary may become interested in the early death of the insured, it is held that the insurance upon a life 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- ums. There is nothing speculative either in the contract and therefore a void contract of in-origin or continuance of such a contract, as 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.

The presence of an insurable interest on the part of the beneficiary is urged as a request to avoid the appearance of a wager contract, holding that without such an interest, the interest of the beneficiary is specuAn insurable interest in the benelative. ficiary may be shown by proof of the fact of relationship between the beneficiary and the insured within certain degrees, and by proof of pecuniary interest, such as arise between partners and between debtors and creditors. Evidence of such an insurable interest is evidence that the contract is not a wager and is evidence of the contract's validity. But a contract of life insurance may be a valid contract though the beneficiary be without an insurable interest, because no longer does the presence or absence of an insurable interest of the beneficiary alone control the ques

tion whether the contract is valid or void. If the beneficiary has an insurable interest and the transaction is otherwise legal, the policy is valid; if he has not such an interest, the policy may still be valid, if the transaction is bona fide and free from speculation.

The rules of law as gathered from the cases and to be applied by you to the facts of this case, are these:

Mr. Justice Brown, of the Supreme Court of the United States, in Langdon v. Union Mut. L. Ins. Co. (C. C.) 14 Fed. 272, said:

"There is no case, to my knowledge, which holds that a party may not insure his own life and make the policy payable to any one he may select, though such person have no legal interest in his life."

In Lamont v. Grand Lodge I. L. H. [C. C.] 31 Fed. 177, Justice Shiras, of the Supreme Court of the United States, says:

"Where a third party, without any insurable interest in the life of another, procures a policy of insurance on the life of such person, either by having a policy issued directly to himself, or by having the person whose life is insured take out a policy to himself, and then assign it, these facts, as is held in Warnock v. Davis [104 U. S. 775, 26 L. Ed. 924], conclusively show that the transaction is a mere speculation on-the life of another, and as such is contrary to public policy, and therefore void.

[5] The authorities for these propositions of law are cited in a note to the case of Dolan v. Association, 16 L. R. A. (N. S.) 555, in which the law is concisely stated as follows:

"With one or two possible exceptions, the courts all agree that, in case the transaction his own life for the benefit of one having no is bona fide, a person may take insurance upon insurable interest in his life; and that the latter may collect and hold the amount which becomes due upon the policy. *** "The general rule that, although a person without legal insurable interest in the life of another may not procure insurance upon the life of such other, the person insured, in the rectly with the insurer and make the policy absence of bad faith, may himself contract dipayable to whomsoever he will, regardless of the party's insurable interest. * Assur. Soc. [190 N. Y. 111, 82 N. E. 734], su"As is said in Reed v. Provident Sav. Life pra: 'What will distinguish the one contract from the other is the fact as to the party actually contracting with the insurer; and the distinction is substantial and controlling accordingly.'

*

"The doctrine is based upon the theory that it is not reasonable to suppose that a person ulation, or be tempted to take his own life in will insure his own life for the purpose of specorder to secure the payment of money to another, or designate as the beneficiary a person continuance, of his own life. Hess v. Segeninterested in the destruction, and not in the felter (Morgan v. Segenfelter) [127 Ky. 348, 105 S. W. 476], 32 Ky. Law Rep. 225, 14 L. R. A. (N. S.) 1172 [128 Am. St. Rep. 343]. *** contract is to determine by whom the premiums "One of the tests as to the validity of the are to be paid. If the one taking the insurance pays the premiums, the transaction is generally upheld. But there is a strong, though not universal, tendency to condemn contracts in which the premiums are paid by the beneficiary."

[6] Giving consideration to this instruction upon the law, we say to you, that if you find that the contract of insurance sued upon was procured and entered into by Hanlin, the insured, and the premiums were paid by Hanlin, the insured, either personally or through his agent, and the circumstances otherwise indicate a bona fide nonspeculative transaction, the contract cannot then be held a gambling contract, and your verdict should be for the plaintiff, for the amount of his claim, and interest, whether the plaintiff, as benefi

ciary, had or had not an insurable interest in the life insured for him. If, however, you find that the plaintiff had an insurable interest in the life of the insured, in the manner before defined to you, evidence of such an insurable interest is evidence which you may consider in connection with all the other evidence in the case, in determining the good faith of the transaction and in reaching a verdict for the plaintiff. But if you find that the plaintiff had no insurable interest in the life of the insured, that is, he was not related to the insured as a relation or in a friendly way, and that the plaintiff procured or was the instrumentality in procuring the contract of insurance for the insured, but in his own. favor as beneficiary, and that the contract was not procured by the insured and the premiums thereon were not paid by him or by his agent with his money or upon his obligation, you may find the transaction void as a wager transaction and then your verdict should be for the defendant.

The last question for your decision rests upon the life or death of the insured. If you find that Hanlin is not dead, that being the contingency in any event upon which the defendant is liable to make payment, your verdict, of course, should be for the defendant. [7] This, gentlemen, is a civil case, and it is distinguished in its mode of proof from criminal cases. In a case of this character the burden of proving, the legality of the contract, the performance of the conditions precedent on the part of the plaintiff and the liability of the defendant therein, rest upon the plaintiff. And that he must prove, not as in criminal cases beyond a reasonable doubt, but by what is termed the preponderance of the evidence.

terdict, from holding in the building services similar to those of the Roman Catholic Church, obtained a revocation of the interdict, and then again sought to enjoin such priest from conducting services in the church, and the other members from installing therein any minister Catholic Church, and from diverting the church other than an ordained priest of the Roman property to worship other than that prescribed by that church. Held that, since the interdict was a disciplinary measure not affecting a diwhich it had been dedicated, plaintiffs, though version of the property from the purposes for having no standing to complain while the interdict was in force, were entitled, with the interdict removed, to the relief prayed for.

[Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 111-129; Dec. Dig. §

18.*]

Appeal from Court of Common Pleas, Lackawanna County.

Bill for injunction by Joseph Novicky and others against Anthony Krauczunas and othinjunction, and final decree for plaintiffs, deers. From an order continuing preliminary.

fendants appeal. Affirmed.

The facts appear in the opinion of the Supreme Court, and in Krauczunas v. Hoban, 221 Pa. 213, 70 Atl. 740; Mazaika v. Krauczunas, 233 Pa. 138, 81 Atl. 938; and Novickas v. Krauczunas, 240 Pa. 248, 87 Atl. 686.

Argued before FELL, C. J., and BROWN, MESTREZAT, ELKIN, and STEWART, JJ. William J. Hand and A. A. Vosburg, both of Scranton, for appellants. John G. Johnson, of Philadelphia, and T. P. Hoban and John P. Kelly, both of Scranton, for appellees.

STEWART, J. This protracted controversy had its inception in the refusal of the bishop of the diocese within the bounds of which was included St. Joseph's Lithuanian Catholic Church, and to whom the title of the property of the said St. Joseph's Lithu

[8] If you find the evidence to be conflicting, it is your duty to reconcile it if you can, and if you cannot, you should reject that tes-anian Catholic Church had been conveyed for timony which you consider least worthy of credit and accept that which you consider to be most worthy of credit, and in doing so you should have regard to the intelligence, the understanding, the interest or the bias of the witnesses, and their ability to see, comprehend and remember that to which they have testified.

Verdict for plaintiff for $132.37.

(245 Pa. 86)

a special and temporary use, to reconvey the same to the trustees of the congregation in accordance with the express desire of a majority of the adult members of the congregation at a meeting regularly called, on the ground, as claimed, that under the canons of the Roman Catholic Church the title to all church property is required to be in the name of the bishop of the diocese, to be held by him, not for the particular congregation, but for the church at large. This phase of the controversy was before us in Krauczunas v. Hoban, 221 Pa. 213, 70 Atl. 740, which was an appeal from a decree supporting the contention of the bishop, and we there held, reversing the decree of the court below, that 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- 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

NOVICKY et al. v. KRAUCZUNAS et al.
(Supreme Court of Pennsylvania. April 20,
1914.)

RELIGIOUS SOCIETIES (§ 18*)-PROPERTY-IN

JUNCTION.

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 decree be entered requiring that a conveyance be executed by the bishop of the diocese for the premises held by him in trust for St. Joseph's Lithuanian Catholic Congregation of the city of Scranton to the plaintiffs, the regularly chosen trustees of the congregation, in trust for said congregation.

"The situation as thus presented is briefly this: The congregation can have no other worship 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 au

thorized 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 than that prescribed and authorized by the said Catholic Church. The answer to the bill admits that from its inception the congregation of St. Joseph's Church was in ecclesiastical relation and union with the Roman Catholic Church, and that since the erection of the church building the same has been used by the congregation for public worship according to the rights of the Roman Catholic Church down until by the episcopal interdict Catholic worship therein was forbidden during the continuance in force of the interdict. The contention made by the answer is that:

pline. The contention on part of the defendants is that this relation was severed by episcopal action when the interdict was proclaimed. A clear corollary to this would be that, while the congregation may not divert the property, which is its own, from the uses and trusts to which it was originally dedicated, the bishop of the diocese by his episcopal authority may-a deduction to which we cannot agree. The whole purpose of the interdict was disciplinary; it was a temporary suspension of the right of Catholic worship in the church with a view, as we found, through exercise of ecclesiastical power, to 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 Church, and the final refusal of the church authorities in December, 1911, to remove the same, was to make the said St. Joseph's Lithuanian Catholic Congregation an independent congregation, and that the said congregation is not now in any manner subject to the jurisdiction of the authorities of the Roman Catholic Church."

law of the land. It was not intended to separate the body of St. Joseph's congregation from the Roman Catholic Church, or to renounce for the congregation its claim to the church property. It would have been ineffective had it been otherwise. So long as the episcopal interdict was in force we declined to interfere, at the instance of those obeying the interdict, to prevent those defying it from having a form of worship in the church

nearest akin to that which the interdict for

bade; but now, with the interdict removed, the appellees, emboldened perhaps by our indulgence, openly assert their independence of the authority of the Catholic Church, and their purpose to devote the church property to other uses than those to which it was originally devoted, by uniting the church to an

other wholly separate and distinct church organization. For this no warrant can be found in any of the decisions of this court. Such of the complainants as were members of St. Joseph's congregation when the interdict was issued remain members, notwithstanding they have meanwhile been worshipping in another church, and as members they have an undoubted right to protest against any diversion of the church property to other than its original uses.

The court below awarded the injunction as prayed for, and this appeal followed. While the answer contains much more than we have recited, what we have here given of it states the whole question. It avers that the episcopal interdict was not revoked in good faith; but into that question we will not enter, for the one sufficient reason that whether in good or bad faith it has effectually removed the one and only consideration on which we based our recent decision in Novickas v. Krauczunas, supra. The complaint there was that defendants were diverting the property from its original uses by allowing other worship therein than that prescribed by the Catholic Church. We have distinctly asserted that it was not in the power of the congregation to divert the property from its original use, but held that the plaintiffs had no standing to ask equitable relief so long as the episcopal interdict, which prevented defendants from having Catholic worship in the church, was in force, and that their appeal must first be to the ecclesiastical authority which had forbidden Catholic worship in the church for rescission of the interdict that prescribed it. Nothing can be found in any of the opinions of this court touching this controversy from first to last which gives even the slightest warrant for supposing that any departure was intended from the settled rule that forbids a diversion of property of a religious society from the uses, purposes, and trusts to which it may have been lawfully dedicated. It is a fact, if not expressly admitted too clear for conducting its hospital to the injury of comWhere, 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 of hospital patients disturbed complainants by according to the rights and regulations of the day and at night and depreciated the value of Roman Catholic Church, and that the con- their property, the court properly enjoined de

The assignments of error are accordingly overruled, and the decrees are affirmed, at the cost of the appellants.

(245 Pa. 326)

KESTNER et al. v. HOMEOPATHIC MED-
ICAL & SURGICAL HOSPITAL
OF READING.

(Supreme Court of Pennsylvania. May 18,
1914.)

1. NUISANCE (§ 3*) - INJUNCTION - MAINTENANCE OF HOSPITAL.

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

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 defendant corporation owned adjoining ground, both north and south thereof, and had established and maintained on the north a home for its hospital nurses, and on the south a hospital,

residence.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 4, 5, 9-25; Dec. Dig. § 3.*] 2. NUISANCE (§ 25*)-HOSPITALS-INJUNCTION -DEFENSE. Where a hospital is conclusively shown to be a nuisance, its status as a charitable institution is no defense, in an action to enjoin its maintenance.

adjacent to the residence of complainants; that the moans, shrieks, and groans of persons receiving surgical aid in the rooms of the hospital, facing complainants' house, were of such a character as to render wretched the lives of complainants and of friends visiting them, and were such as to affect their nerves and impair their health; and that the management and carrying on of the hospital rendered complainants' house unfit for residen

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 5, 60-63; Dec. Dig. § 25.*] 3. NUISANCE (§ 3*) INJUNCTION MAINTENANCE OF HOSPITAL INJURY TO ADJACENT PROPERTY. Where, in a suit to enjoin defendant from conducting its hospital to the injury of complainants, who owned a residence situated a few feet distant from the hospital, it appeared that tial purposes, depreciated its value in the marpersons 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 continuing

ance of such acts.

[Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 5, 60-63; Dec. Dig. § 3.*] 4. NUISANCE (§ 32*)-INJUNCTION-PLEADING -AMENDMENT.

An amendment to a bill to enjoin defendant from maintaining the emergency operating room of its hospital in close proximity to complainants' dwelling house, which amendment averred that defendant allowed persons occupying rooms to throw refuse on complainants' property, was properly allowed, where it did not appear that defendant was in any way prejudiced thereby. [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 77-83; Dec. Dig. § 32.*] 5. APPEAL AND ERROR (§ 1041*)-HARMLESS ERROR AMENDMENT TO BILL.

If permitting an amendment to a bill for an injunction tended to prejudice defendant because of its counsel's failure to examine the amendment carefully and file an answer to new matter, the prejudice was avoided where complainants' counsel agreed that the answer filed should be considered as a denial of all the facts contained in the amended bill.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. § 1041.*]

fact, and an averment was added that defendant had annoyed and continued to annoy complainants by permitting persons occupying rooms in the hospital to throw refuse across the party line fence and upon complainants' property.

The trial judge found as facts that the building of complainants was partly threestoried and partly two-storied, and had 21 windows and 9 doors facing defendant's hospital; the windows and all the doors, except two, being from 9 to 12 feet distant from the hospital building. The two doors were 17 feet distant. The rooms facing the hospital included the parlor, living room, dining room, kitchen, pantry, and summer kitchen on the first floor, and sleeping rooms on the second floor. The hospital has 48 windows facing complainants' property. A wooden fence about nine feet high separates the two yards. The trial judge further found:

"On the northern side of defendant's hospital facing the Kestner property were maintained, 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.

Injunction by George L. Kestner and another, executors of the last will and testament of Elizabeth Kestner, deceased, and others against the Homeopathic Medical and Surgical Hospital of Reading. From a decree awarding an injunction, defendant appeals. Affirmed.

patients, women's private ward, two public ward with three beds, a delivery room with one wards of ten beds each for women, a maternity bed, and a main operating room. There were from 45 to 55 inmates constantly, and from 150 to 350 accident cases are treated per month, of which the public ambulance brings 30 per month. Prior to the filing of the plaintiff's bill, and after the filing thereof, noises came to the Kestner property from the defendant hospital, noises consisting of shrieks, groans, moans, and mostly from the emergency operating room; the yells of persons, and cries of children being op

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. Joseph R. Dickinson, of Reading, for ap-erated upon, or in pain from other causes; the pellant. Cyrus G. Derr, of Reading, for appellees.

said noises occurring at all hours, day and night, and almost daily, disturbing the family at 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 happiness 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