Ætna Life Insurance v. Harris & Reichard Fur Dyers, Inc.

Plaintiff sues to recover $1,829.84, the premiums on policies of insurance issued to defendant. The sole defense is payment. Such defense is predicated on the fact that the defendant, on July 26, 1932, paid to its broker in payment of the premiums in *444suit and in addition the sum of $3,100. The premiums on seven policies of insurance are involved. Four of these policies were not in existence at the time of the payment, and under two of the policies, though they were in existence, the premiums earned were not yet payable. The seventh policy was a renewal of a previous similar policy and provided for a deposit premium of $250. A few days prior to such renewal defendant gave to its broker the aforesaid note for $3,100, and now contends that this note, which was paid at maturity, constitutes payment of its indebtedness.

The general rule is that a broker employed to secure insurance is the agent of the insured and not of the insurer. He is deemed the agent of the company only for the purpose of delivering the policies and collecting the premiums due thereon. Beyond this he is not the company’s agent. Hence, to the extent that the broker here on July 26, 1932, collected any sum in excess of $250, which was the only premium then due, he was not acting as the agent of the insurers and consequently any such excess payment made to the broker does not constitute payment of any amount thereafter to become due to the insurers. For this reason the defense of payment is not established.

The answer is stricken out, and judgment awarded plaintiff against defendant as demanded in the complaint. Execution stayed until three days after service of notice of entry of judgment. Order signed.