Thomas v. Commercial Union Assurance Co.

Morton, J. The policy upon which these suits are brought was issued to the plaintiff Thomas. The property which was the subject of the insurance is described in the policy as “ her frame dwelling-house situated on Glen Avenue near Coolidge Avenue, Watertown, Mass.,” and “ her frame private stable situated near the above dwelling.” There was but one premium paid for the dwelling and stable, and the contract of insurance was an entire one. If it is void in part, it is void altogether, and cannot be apportioned. Friesmuth v. Agawam Ins. Co. 10 Cush. 587. Brown v. People's Ins. Co. 11 Cush. 280. Lee v. Howard Ins. Co. 3 Gray, 583. Kimball v. Howard Ins. Co. 8 Gray, 33. The questions on which the cases principally turn are, first, whether the main building was properly described as a dwelling-house, and, secondly, if not, what is the effect of the misdescription. We think that, upon the undisputed facts, it cannot be regarded as having been a dwelling-house at the time when it [33] was insured.' It was conceded at the trial that the structure had been used for years, and up to the time of its damage by fire shortly before its purchase by the plaintiff, as a small hotel, and was known as the Glen Hotel. The plaintiff Thomas testified that “ it was always called the Glen Hotel or the Glen, mostly the Glen,” and that at the auction at which she bought the property the notice read by the auctioneer described it as the Glen Hotel. There was no testimony that it had been occupied as a dwelling-house before the issuing of the policy, unless the evidence of the presence of the care-taker, Egan, put in by the plaintiff, constituted such occupancy. The number of rooms in the house, and their arrangement and purposes, showed that it was as it stood a hotel, and not a dwelling-house; and we do not think that the mere fact that the plaintiff immediately after purchasing the property put in a care-taker, who slept in one of the rooms, changed the character of the place from a hotel to a dwelling-house. No doubt the plaintiff could have made a dwelling-house of it, but she did not. She herself says that she was going to sell it as soon as she got a chance, apparently just as it was, if she could. Her undisclosed intention to let it to a family, so as to get a little out of it, did not change the open and visible character of the property. The property being a hotel, and not a dwelling-house, the next question is how that affects the policy. It is possible that a building, though called a hotel, may be in fact a dwelling-house, and more correctly described as such. But, as already stated, we think that, upon the undisputed facts, this building must be regarded as a hotel. The testimony shows that a hotel risk is different from and more hazardous than a dwelling-house risk. The burden was on the plaintiff to show that the building was a dwelling-house. Ring v. Phœnix Assurance Co. 145 Mass. 426. It was competent for the defendant to show that this was a hotel, and therefore not the risk which it insured. It agreed to insure a dwelling-house, and not a hotel. The property which was the subject of insurance was in fact a hotel. The minds of the parties have not met, therefore, and no such contract as the policy purports to express has been entered into; and as the only claim which the plaintiff has upon the defendant is under the policy, it follows that she cannot maintain it. [34] Gardner v. Lane, 12 Allen, 39. Goddard v. Monitor Ins. Co. 108 Mass. 56. The testimony which was offered by the plaintiffs of what took place at the issuing of the policy for the purpose of showing that the property was fully described to the agent, and that the description contained in the policy was his description, was rightly excluded. If admitted it would have tended to vary the written contract. Barrett v. Union Ins. Co. 7 Cush. 175. Jenkins v. Quincy Ins. Co. 7 Gray, 370. McCluskey v. Providence Washington Ins. Co. 126 Mass. 306. Batchelder v. Queen Ins. Co. 135 Mass. 449. The result is, that the exceptions must be overruled, and it is So ordered.