Action by the plaintiff Zennor C. Barker to recover damages from the defendant corporation for libel.
The complaint, among other things, alleges that the defendant is engaged in the business of gathering and disseminating credit information on firms and individuals; that it caused to be prepared a written report on the desirability of the plaintiff as an assured; that such report falsely stated that the plaintiff is an excessive drinker; and that immediately upon preparation of such report it was communicated to the office of Farmers Mutual Automobile Insurance Company at Madison, Wisconsin. There is no allegation that the defendant in preparing and transmitting such report was actuated by malice.
The defendant demurred to the complaint on the ground that it appeared on the face thereof that it does not state facts sufficient to state a cause of action. By order entered November 19, 1958, the trial court sustained the demurrer. The trial court also filed a memorandum opinion in which it was determined that the report which the defendant transmitted to the insurance company was conditionally privileged, thereby casting the burden upon the plaintiff to allege and prove malice.
The plaintiff has appealed to this court from the order sustaining the demurrer.
PER CURIAM.
Mr. Justice FAIRCHILD, Mr. Justice HALLOWS, and Mr. Justice DIETERICH are of the opinion that the order should be reversed because they deem the complaint does not allege facts sufficient to establish that the report transmitted to the insurance company is conditionally privileged. This is because there is no allegation that the insurance company had requested the defendant to furnish it with such report. Mr. Justice BROADFOOT, Mr. Justice BROWN, and Mr. Justice CURRIE are of the opinion that the complaint does sufficiently allege facts to establish the existence of conditional privilege, and would affirm the order. The court being equally divided, under the applicable rule of the court, the order is affirmed.
The court deems it advisable to state that there is no division of opinion that a report of the nature alleged in the complaint, made by a mercantile agency to an insurance company at the latter's request, is conditionally privileged. 36 Am. Jur., Mercantile Agencies, p. 184, sec. 11, and annotation entitled, "Libel and slander: Report of mercantile agency as privileged," 30 A.L.R.2d 776, 777.
MARTIN, C. J., took no part.