Thomas v. Commercial Union Assur. Co.

• Decision Date: 23 June 1894
• Citation: 37 N.E. 672,162 Mass. 29
• Parties: THOMAS BENNETT v. COMMERCIAL UNION ASSUR. CO., Limited. BENNETT v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 29

37 N.E. 672

THOMAS BENNETT v. COMMERCIAL UNION ASSUR. CO., Limited. BENNETT v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1894

COUNSEL

Gaston &amp Snow, for plaintiffs.

John D Bryant, William Caleb Loring, and Philip Dexter, for defendant.

OPINION

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 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. Friesmith v. Insurance Co., 10 Cush. 587; Brown v. Insurance Co., 11 Cush. 280; Lee v. Insurance Co., 3 Gray, 583; Kimball v. Insurance 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 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 after 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 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, an 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 an 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 an hotel, and not a dwelling house, the next question is how that affects the policy. It is possible that a building, though called an 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 an hotel. The testimony shows...