Ash v. Zweitusch

57 Ill. App. 157, 1894 Ill. App. LEXIS 244

• Court: Appellate Court of Illinois
• Decided: January 28, 1895
• Status: Published

Opinion

Mr. Presiding Justice Waterman

delivered the opinion op the Court.

Townsend in his work on Slander and Libel, page 381, says that the better and prevailing opinion is that no action for libel can be maintained for defamatory matter contained in a pleading in a court of civil jurisdiction.

Rodgers in his work upon Libel and Slander, page 188, announces the same opinion as to the rule.

An examination of the authorities cited in support of these conclusions will show that while courts have frequently made use of expressions in accordance with the language of these text writers, in the majority of the cases the question of the absolute privilege of defamatory words, wholly foreign and impertinent to the matter presented to the judicial tribunal, was not before the court.

There are numerous dicta to the effect that the privilege accorded to a party in a pleading does not extend to matters entirely impertinent and irrelevant, and there is the well-considered case of McLaughlin v. Cowley, 127 Mass. 316, in which wholly impertinent and defamatory words causelessly injected into a pleading were held actionable.

We are not in this action called upon to express an opinion as to the absolute privilege of all that may be said in a pleading, for'the reason that in the declaration filed in this cause, the plaintiff has set forth enough of the bill to which the defamatory language in the answer was a reply, that it appears that such words were not wholly irrelevant and impertinent to the matters and things presented by the proceeding in the tribunal where such action was pending.

The demurrer to the declaration was therefore properly sustained and the judgment of the Circuit Court is affirmed.