Bowditch v. Norwich Union Fire Ins. Soc.

• Decision Date: 03 January 1907
• Citation: 193 Mass. 565,79 N.E. 788
• Parties: BOWDITCH v. NORWICH UNION FIRE INS. SOCIETY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 565

79 N.E. 788

BOWDITCH v. NORWICH UNION FIRE INS. SOCIETY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1907

COUNSEL

Robert Homans, for plaintiff.

Frederick W. Brown, for defendant.

OPINION

LORING, J.

This case is concluded by the decision of this court in Thomas v. Commercial Union Assur. Co., 162 Mass. 29, 37 N.E. 672, 44 Am. St. Rep. 323.

If the question here had been the question of the identification of the building insured, the fact that it was described as a dwelling house would not have been material, although there was a shoe store in the basement and a dry goods store on the first floor. But the question here was not a question of identification. A building used in part as a dwelling house and in part as a store, for the purposes of insurance, is not a dwelling house but a different kind of building. It costs half as much again to insure it. The defendant agreed to insure the building as a dwelling house. For the purpose of insurance the building in question was not a dwelling house. No contract ever was made insuring this building as it was,--part dwelling and part store. For a case like the case at bar, in fact as well as law, see Dougherty v. Greenwich Ins. Co., 64 N. J. Law, 716, 42 A. 485, 46 A. 1099.

The plaintiff has argued that he left the matter of insuring the building in question to an insurance broker who was agent of the defendant company. It is agreed that Macomber, the broker and agent in question, had maps in his office which showed the character of the building. The fact that Macomber might have found out that the building insured was not a dwelling house, but did not find that out, may be ground for an action of negligence against him as the plaintiff's broker for making the contract which he made. The action here is on the contract which he made. In such an action this fact is immaterial. In this respect the case at bar falls short of Thomas v. Commercial Union Ins. Co., 162 Mass. 29, 37 N.E. 672, 44 Am. St. Rep. 323, in which the evidence was held rightly excluded which showed that the building was fully described to the agent of the company when the policy was issued. It was held rightly excluded on the ground that it contradicted the written contract sued on.

Judgment for the defendant affirmed.