Insurance, Fire. Agency. Broker. Words, "Dwelling house." There can be no recovery on a policy against fire insuring a building as a "dwelling house" if the building was used in part as a dwelling house and in part as a store.
In an action against a fire insurance company on a policy insuring a building as a dwelling house, which fails because the building was not a dwelling house for the purpose of insurance, having a shoe store in the basement and a dry goods store on the street floor, the facts that the insurance was procured for the plaintiff by an insurance broker, who was an agent of the defendant, and that this broker had maps in his office showing the character of the building, are immaterial, although the plaintiff may have a cause of action against the broker for negligence in failing to obtain for the plaintiff a valid policy when he had an opportunity of knowing the facts.
LORING, J.
This case is concluded by the decision of this court in Thomas v. Commercial Union Assurance Co. 162 Mass. 29.
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 one at bar, in fact as well as law, see Dougherty v. Greenwich Ins. Co. 35 Vroom, 716.
The plaintiff has argued that he left the matter of insuring the building in question to an insurance broker who was an 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 Assurance Co. 162 Mass. 29, in which evidence was held rightly excluded which showed that the building was described fully to the agent of the company when the policy was issued, on the ground that such evidence contradicted the written contract sued on.
Judgment for the defendant affirmed.