dissenting.
I join in the dissenting opinion of Justice Martin but wish to add the following:
Any impartial review of the record in this case leaves no doubt in the reader’s mind that Brooks, in securing the insurance coverage in question, was either the agent of the Miller Company or an independent broker, and not an agent of the insurer Northern National Insurance Company.
Brooks was not licensed by, nor in any way affiliated with, Northern National Insurance Company. He was in fact affiliated with another unrelated company, the Equitable Life Assurance *79Society. Brooks had solicited the Miller Company on behalf of Equitable but Equitable had declined to issue coverage on Mr. Miller because of his heart condition. When Brooks began his search for a company that would issue the coverage, he had never done any business with Northern and in fact had never heard of Northern National Insurance Company. Brooks himself testified that, in attempting to obtain the coverage on Mr. Miller, he acted as agent for the Miller Company and not Northern. The Miller Company was Brooks’s good client which he called on an average of once a month. Brooks obtained the policy application for the key man insurance from National’s General Agent Barney Haynes as anyone could have done. The premiums Brooks collected were turned over to National’s Agent Haynes. The only time National licensed Brooks as its agent was after it approved the Miller Company’s applications and issued the coverage and then only for the obvious purpose of paying him commissions.
Even if one is unconvinced that Brooks acted as agent of the Miller Company in the transaction in question, it does not automatically follow that he was the agent of Northern National Insurance Company. If Brooks was in fact not the agent of the Miller Company, he was, at most, merely a broker acting through National’s general agent Barney Haynes. G.S. § 58-39.4(b) envisions this very arrangement:
An insurance broker is hereby defined to be an individual who being a licensed agent, procures insurance through a duly authorized agent of an insurer for which the broker is not authorized to act as agent.
The authority of a broker is defined by G.S. § 58-40.3(a) as follows:
A Broker, as such, is not an agent or other representative of an insurer, and does not have the power, by his own act, to bind an insurer for which he is not agent upon any risk or with reference to any insurance contract.
Although, as the majority points out, there is authority in the case law of this State which would make Brooks, as broker, the agent of the Miller Company, it is completely unnecessary to go that far in the case now before us. I believe the majority misperceives the proper analysis of the question of whether, in a *80given situation, one is acting as “broker” or as “agent.” The majority seems to perceive the term “insurance broker” as a vocational status of an individual who, in a given transaction, might also be an agent. This is an improper analysis. The appropriate analysis must be done on the basis of the single transaction, such as the one now before the Court, in which the party must be either broker or agent, he cannot be both. If one applies the proper analysis to the facts before us, Brooks was a broker in this transaction between the Miller Company and National and not an agent of National.
There was insufficient evidence of Brooks’s acting as agent of National to submit that issue to the jury. The credibility of Northern’s evidence as to the status of Brooks as either agent of the Miller Company or independent broker was clearly manifest as a matter of law. The trial judge should have granted National’s motion for judgment n.o.v. I vote to reverse the Court of Appeals.
Justices Exum and MARTIN join in this dissenting opinion.