Opinion by

The learned judge below directed a verdict for defendant on the ground that the misrepresentation upon which the policy was procured was a fraud wMcli avoided the contract. In this he followed the law as settled in Freedman v. Fire Association, 168 Pa. 249. The fact of such misrepresentation is undisputed, though as to whether Sturdevant knew it was untrue at the *67time he made it, the evidence is conflicting. The correctness of the instruction therefore depends on the relation of Sturdevant to the parties. If he was the agent of defendant then there was a question for the jury whether he had been informed, or had notice, that R. Freedman was a married woman. But if he was the agent of plaintiff then his knowledge was immaterial, the plaintiff cannot avoid the responsibility of a misrepresentation by her own agent, whether made knowingly or not and at the same time claim a benefit arising from such misrepresentation.

An examination of the evidence shows that the learned judge was clearly right in holding Sturdevant to be the plaintiff’s agent. His own testimony which is uncontradicted on this point, shows that Sturdevant was an insurance broker, having no special relation to the defendant company but occasionally taking out policies in it, through its regular agent, for his-customers when he could not or did not wish to place their risks in the other companies which he personally represented. He was not at the time he procured this insurance, and had never been, an agent for the defendant, nor was he acting on this occasion in behalf or at the suggestion of the regular agent, Darte. On the contrary, in soliciting this insurance he was pursuing his own business as a broker and, as he says, using his own judgment where to place the insurance his customers authorized him to procure for them. The case was clearly in line with Pottsville Ins. Co. v. Minnequa Springs Co., 100 Pa. 137.

It is argued by appellant that the judge in taking the case away from the jury overlooked the decision of this court when the case was here before, 175 Pa. 350. But what was said there in regard to the knowledge of defendant that the insured was a married woman being a question for the jury was merely narrative, in distinguishing the case from one of the same name in 168 Pa. 249, and was based on the evidence as it then appeared to be. The opinion then proceeds to the subject of waiver, and states explicitly that that is the only question to be considered.

Judgment affirmed.