Tucholka v. Western Assurance Co. of Toronto

Majority

p. 933

Fourth Department,

November, 1918.

John Tucholka, Appellant, v. The Western Assurance Company of Toronto, Canada, Respondent.

Headnote

Insurance — when policy becomes effective.

Appeal by the plaintiff, John Tucholka, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Erie county on the 8th day of February, 1917, dismissing plaintiff’s complaint and cause of action and for sixty-eight dollars and seventy-seven cents costs.

While we are of the opinion that if the policy did not become effective before the fire occurred the complaint was properly dismissed, we think the trial court erred in so deciding as a matter of law upon the facts and circumstances as they were claimed to be by plaintiff’s counsel upon the trial. Plaintiff did not consent to a trial by the court; he is, therefore, entitled to the most favorable inferences to be drawn from the statement of facts. We think it is fairly clear from the entire colloquy between court and counsel that plaintiff’s counsel claimed that the renewal policy was effective from the date of issue, and that only the time of payment of the premium had been postponed. It may well be that he will not be able to establish that, but he should at least be given a chance to give his evidence and have a trial of the controversy. The judgment and order' should be reversed and a new trial granted, with costs to appellant to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.