operator, left the employ of the coal company on the occasion of a strike, June 21st, the relations of master and servant, of employer and employee, were at an end. It required a new contract, a new employment, to restore such relations. When he entered the service of the coal company as a mechanic on August 24th, it was under a new contract, a new employment, in a different capacity, at a different wage. It was in this new capacity, this new employment, that he was working when he met his death. He had not worked in this employment 'during substantially the whole of the year immediately preceding his injury.' In fact, he had so worked but a short time. It is clear, therefore, that the decedent belonged to the second class mentioned in the Andrejuski Case, and that compensation should be computed upon the basis of his average daily wage during the days when he was so employed."

The case of Jones v. Ocean Coal Co. [1899] 2 Q. B. 124, is somewhat similar to the preceding one. Here a clause of the Workmen's Compensation Act was involved providing that "where total or partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week, not exceeding 50 per cent of his average weekly earnings during the previous twelve months if he has been so long employed, but if not then for any less period during which he has been in the employment of the same employer." In this case a workman in a colliery had been working under an agreement fixing wages, and this agreement was terminated by notices, and the workman for five months was out on a strike, or lockout, at the end of which time he returned to work for the same employer under a new contract, and shortly afterward was injured. It was held that the provision quoted contemplated a continuous employment for twelve months, and that the workman in question had not been so employed, but that the period to be taken as a basis for estimating his average weekly earnings was from the time he returned to work after the strike to the time he was injured, the court taking the view that there was a termination of the employment by the strike, and that he need not have returned to his former employer, but might have got an engagement elsewhere. In Griffiths v. W. Gilbertson & Co. [1915] W. N. 253, 8 B. W. C. C. 548, 84 L. J. K. B. N. S. 1312, 113 L. T. N. S. 628, 11 N. C. C. A. 666, it was admitted that the period that a workman was out of work through no fault of his during a strike in another trade, to which his trade was related, should be omitted in calculating his average weekly earnings during the year he had been in the em ployer's service before he sustained an injury.

In Woodhouse v. Midland R. Co. [1914] 3 K. B. 1034, 7 B. W. C. C. 690, 83 L. J. K. B. N. S. 1810, 30 Times L. R. 653, where a porter was injured, and after being totally disabled was given light work at his old wage, and claimed to recover for four days

during which he was out of work on account of a strike, the court refused to decide as to the effect of the strike, and held that in no event was he entitled to more than the difference between the average weekly earnings before the accident and those after it, and that under the circumstances this was so trivial that nothing should be awarded. J. T. W.

[SUPREME COURT OF CANADA.]

S. M. ROSS and Others (Plaintiffs), Appellants,
and

SCOTTISH UNION & NATIONAL INSURANCE COM-
PANY (Defendants), Respondents.

58 Can. S. C. 169.

ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ONTARIO.

Fire insurance – Policy on "dwelling"-Use as store and dwelling. A building used as a combined store and dwelling is not occupied as a dwelling within the meaning of a clause in a policy of fire insurance which expresses the risk to be on the building while occupied as a dwelling.

-Failure to state name of occupant.

A fire insurance policy expressing the risk to be on the premises "while occupied by as a dwelling" is intended to insure occupied buildings only, and the failure of the insurance agent to insert the name or description of the occupant is immaterial. Idington and Brodeur, JJ., dissenting.

-Policy on premises while occupied as a dwelling

- Issuance while

property was vacant Occupancy and subsequent vacancy. Although by reason of the insurer's knowledge that the building insured was at the issuance of the policy uncompleted and not likely to be occupied for some time, the risk may attach notwithstanding the policy purports to insure the described premises only while occupied as a dwelling, yet after it has been once occupied the insurance is suspended on its becoming vacant, and a loss occurring during such vacancy is not recoverable.

Disurance Action on policy – Allowance of interest.

In an action on a fire insurance policy in which it is conceded that the plaintiff, if entitled to recover at all, may recover the full amount

of the policy, the plaintiff should be allowed interest from the time when, under the provisions of the policy, the loss became payable.

(December 23, 1918.)

Present: Sir Louis Davies, Ch. J., and Idington, Anglin, Brodeur, and Mignault, JJ.

[170] APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario (1917) 41 Ont. L. Rep. 108, 39 D. L. R. 528, reversing in part the judgment on the trial in favor of the plaintiffs.

The facts are stated in the opinion of Idington, J., infra. The only questions raised were whether or not the insurance policies covered houses that were vacant when destroyed by fire and one. used as a store and dwelling combined. Also, whether the judgment could provide for payment of interest before the amount due the insured was ascertained.

Hugh J. Macdonald and J. E. Lawson, for the appellants, cited Hawthorne v. Canadian Casualty Ins. Co. (1907) 14 Ont. L. Rep. 166, 39 Can. S. C. 558; Davidson v. Waterloo Ins. Co. (1905) 9 Ont. L. Rep. 394; Toronto R. Co. v. City of Toronto [1906] A. C. 117, at pages 120, 121, 75 L. J. P. C. N. S. 36, 93 L. T. N. S. 646, 22 Times L. R. 32.

McKay, K.C., for the respondents, referred to McKay v. Norwich Union Ins. Co. (1895) 27 Ont. Rep. 251; Boardman v. North Waterloo Ins. Co. (1899) 31 Ont. Rep. 525; London Assur. Co. v. Great Northern Transit Co. (The Baltic Case) (1899) 29 Can. S. C. 577.

The Chief Justice: I concur with Mr. Justice Anglin.

Idington, J. (dissenting): The respondent, on the 9th May, 1913, issued ten insurance policies to the owners of a row or block of ten buildings, insuring for three years said owners (who paid a cash premium for each of same) against losses by fire in respect of any of said buildings.

[171] One of said owners, with the consent of the respondent,

transferred his interest in said policies to his wife, the appellant B. Langbord.

The houses were all unoccupied, and indeed not quite finished at the time when these transactions took place. None were occupied till at least six weeks had run from the date of the insurance thus professed to have been effected and in fact paid for.

And some further time expired before tenants were got for all. Exactly how long is not made clear. Yet, according to some opinions expressed below, these thrifty people were knowingly paying in advance for nothing. I cannot find on the true interpretation and construction of the contract that such was ever conceived by those concerned to be the nature of their contract.

The said policies were all in the same form and each was designed to cover the tenement corresponding with the number it was applicable to.

Each contained the following clause:

"$1,200 on the two story brick fronted, roughcast, shingle roof building and additions, including foundations, plumbing, steam, gas and water pipes and fixtures, while occupied by

.

as a

dwelling, and situated on on the east side of Keele street, Toronto, lot 50, 51, 52, plan No. 1612, between Eglington avenue and Cameron avenue, known as house Number -"

And as,

In the course of the trial many defenses were set up. in my opinion, each and all thereof, except two dependent upon the legal interpretation and construction of their contract, were so effectually disposed of by the findings of the jury in answer to questions submitted, which upon the relevant facts they alone were entitled to pass upon, I will deal only with those excepted which I have referred to.

It seems that four, or possibly five, of the houses in question had been vacant for a considerable time [172] before, and at the time of, the fire which destroyed said block and resulted in what is now in question herein.

It is urged that the said policies must be read as if the words "owner or tenant" had been written therein, where a blank space is left after the word "by," and much varying ingenuity has been displayed in filling up in imagination what the respondent, in using the printed form, deliberately left blank.

I respectfully submit we have no right to fill up anything in a contract emanating from the respondent and therefore to be rather construed as against than in favor of it.

At best it stands as an ambiguous contract.

In order to interpret and construe it correctly, we may summon to our aid the surrounding circumstances before and immediately succeeding its execution.

The conduct of the parties in such relations is, in my opinion, fatal to any such contention as set up and maintained on the ground of vacancy, when we consider that the insured was paying, evidently from the outset, on the hypothesis that the policies were intended to insure against loss by fire notwithstanding vacancies of no matter how long duration, unless under circumstances giving rise to conditions beyond what the contracting parties had in that regard in view in contracting.

In such latter event there might arise a question of something material to the risk falling within the terms of statutory condition No. 2.

That possible aspect of the matter has been disposed of by the verdict of the jury to whom it was submitted.

Moreover, the vacancies now claimed to have voided the policies existed at the time when the appellant paid for and got a renewal of each policy in May, 1916, for a further term of three years.

[173] I know not why we should actually fill in the blank with words selected by the manager of respondent, instead of what common sense would indicate in light of the conduct of the parties by inserting the word "nobody" if, as I am not, obsessed with the idea that it must be filled in.

The words "occupied by" are in themselves meaningless and should be treated, as they evidently are, as surplusage. I submit that we must ever, if possible, try to fit the language used to the actual situation with which those contracting were confronted and dealing, if we would do justice.

Can there be a shadow of doubt herein that it was the impossibility of fittingly meeting that situation by any ordinary expedient of filling in the blank in a way which could be rendered conformable with the mutual understanding of the parties, that led to the entire omission of any attempt to do so?