Ridgeway State Bank v. Bird

• Decision Date: 13 January 1925
• Citation: 185 Wis. 418,202 N.W. 170
• Parties: RIDGEWAY STATE BANK v. BIRD.
• Court: Wisconsin Supreme Court

185 Wis. 418

202 N.W. 170

RIDGEWAY STATE BANK

v.BIRD.

Supreme Court of Wisconsin.

Jan. 13, 1925.

Appeal from Iowa County Court; Aldro Jenks, Judge.

Action by the Ridgeway State Bank against H. R. Bird. Judgment for defendant on nonsuit, and plaintiff appeals. Reversed and remanded.

Eschweiler, J., dissenting.Fiedler & Garrigan, of Beloit, and Kopp & Brunckhorst, of Platteville, for appellant.

McGeever & McGeever, of Dodgeville, for respondent.

DOERFLER, J.

Plaintiff's action is brought to recover damages for slander. At the time of the utterance of the alleged slanderous remarks, and for a long time prior thereto, one Laughlin was the president of the plaintiff bank, a small banking institution located in the village of Ridgeway, and one J. T. Paul was its cashier, and these two officers were the owners of practically all of its capital stock. The complaint charges that on August 24, 1923, the defendant maliciously spoke of and concerning the said plaintiff, in the presence and hearing of one John A. Wise and one Joseph P. Hayes, in substance the following false and defamatory words:

“That the bank handles less than one-quarter of the business in that community, and that its business is growing less from year to year; that Paul and Laughlin (meaning the cashier and president, respectively, of the bank) are crooks, and that the people in and about the village of Ridgeway are afraid to do business with them; that there is something pretty wrong with the financial end of the bank, because just before the bank examiners come around Laughlin and Paul have to sneak out and borrow $15,000 or $18,000 in order to have their affairs in a condition that will satisfy the bank examiners; that, when the income tax reports are made out, such reports show about $8,000 on hand, while, when the bank examiners come around, they have about three times as much; that, when the bank examiners come to town to make an examination of the bank, it becomes necessary to borrow money in order to make the books of the bank balance; that there is a case now pending in which the officers of the bank are charged with slipping in foolers in the records of the bank in order to fool the banking commissioners.”

While other slanderous utterances were charged in the complaint and shown by the evidence, the foregoing are specifically referred to in order to show the general nature and character of the alleged slanderous language used.

Said Paul, in addition to being the bank's cashier, is also the president of the village of Ridgeway, member of the school board, and the village clerk. Some time prior to the making of the said alleged slanderous utterances rumors were afloat in and about said village to the effect that said Paul, as an official of said village, had wrongfully received money from the village in an electric light deal. On the trial of the action Paul claimed that in order to ascertain the source of such rumors and to fix the responsibility or the blame upon those instrumental in originating and spreading the same he hired the Russell Detective Agency of Milwaukee in order to make an investigation. The detective agency sent Wise and Hayes, two detectives in its employ, to the village, and they called upon the defendant at his place of business, and there made an effort to run down these alleged rumors. The record discloses that, while these detectives actually did carry on some investigation which concerned Paul as an officer of the village, their principal effort was directed towards eliciting and procuring statements from the defendant concerning the bank. These detectives represented to the defendant that they represented men of means who were interested in the establishment of country banks, and that they considered the village of Ridgeway a good place for the location of a new bank; that their clients had command of ample means; and they then proceeded to make inquiries from the defendant as to the ability of Paul, as a cashier, to handle the business of the proposed new bank, and pursuant to such false statements they obtained the confidence of the defendant, who readily volunteered the slanderous statements charged in the complaint. After an interview covering a period of about one hour, the two detectives withdrew to their room in the hotel, and there notes of the conversation at defendant's place of business were jotted down on a piece of paper. The record does not disclose anything definite with respect to any alleged slanderous statements made by the defendant concerning Paul in his capacity as an officer of the village, and it further appears that no notes were made upon this subject.

Paul testified upon the trial that the detective agency was not hired by him as an officer of the bank, and the sole authority delegated to the agency came from him, as an individual, to examine into the alleged false rumors concerning his activities as an officer of the village. Upon an adverse examination in this action of Paul as an officer of the bank he testified that he first conferred with Mr. Laughlin, the president of the bank, before he hired the detective agency; that both he and Laughlin transacted considerable business of the bank without consulting the directors; that he retained the agency for the bank in the same manner as he transacted other business of the bank. Further on, however, in his testimony he expressly makes the statement that he hired these men solely to investigate the rumors affecting him in his official capacity as an officer of the village, and that he did not authorize an investigation with respect to any rumors concerning the bank. On his examination as a witness for the plaintiff in this action he also testified positively that the bank had nothing to do with the hiring of the detective agency; that he individually retained the agency; and that he personally paid for the services rendered.

Mr. Laughlin, the president of the bank, upon adverse examination before trial, testified that Mr. Paul, the cashier, conferred with him before hiring the detective agency; that the agency was hired by Paul to investigate rumors concerning the bank; but on the trial he repudiated the statements made on the adverse examination, claiming that during the progress of such examination he was laboring under a false impression, the falsity of which he did not fully realize or comprehend until after the conclusion of the examination, and that Paul, the cashier, had set him right with respect to his mistake.

At the close of plaintiff's testimony the court granted a nonsuit, on the ground that the detectives at the time of the utterance of the slanderous words were the agents and representatives of the bank; that in legal effect the statements made to them were the same as though made to the bank directly; and that therefore there was no publication of the slander.

[1] It becomes apparent from an examination of the evidence that the plaintiff did not establish a strong case. The testimony of both the cashier and the president was highly contradictory. The excuse offered by Laughlin, the president, as to his change of attitude on the trial from that assumed on the adverse examination is somewhat plausible. This, however, cannot be said of the testimony of Paul. It must be assumed that he, above all, knew at the time of the adverse examination whether he hired the detective agency for the bank or whether he hired it for his own individual purposes. His change of position does not reflect credit upon his testimony, nor is his testimony entitled to great weight.

While the two detectives testified that they made the investigation pursuant to directions received from their superiors, and that their instructions limited them to an investigation of Paul's...