
    Barker, Appellant, v. Retail Credit Company, Respondent.
    
      November 30, 1959
    
    January 5, 1960.
    
    
      For the appellant there were briefs and oral argument by John J. Byrnes of Elkhorn.
    For the respondent there was a brief by Kenney, Korf & Pfeil of Elkhorn, and oral argument by Richard H. Pfeil.
    
   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.  