Ash v. Zwietusch

Mr. Justice Carter delivered the opinion of the court: The question in this case is, was the alleged libelous matter contained in appellee’s answer privileged? Appellant contends that it was irrelevant and impertinent, and therefore not privileged,-—that the privilege is not absolute. Appellee contends, first, that it was relevant and pertinent to the matter in controversy, and was privileged; and second, that as the alleged defamatory matter is contained in a pleading in a cause died in due course of a judicial proceeding in a court of competent jurisdiction, the privilege is absolute, whether the matter was pertinent or not. Whether or not a party would be liable, in an action for libel, who injects into a pleading defamatory language having no bearing on but wholly irrelevant to the questions in litigation, and which, if published elsewhere, would be libelous, we have no occasion here to decide, notwithstanding appellant has chiefly addressed his argument to that question, and has referred us to McLaughlin v. Cowley, 127 Mass. 316, and other cases, holding that the privilege is not absolute and does not cover such a case. We think it readily appears from a reading of the bill and answer, which are set out in the declaration, that the matter complained of as libelous was not wholly irrelevant and impertinent to the controversy between the parties involved in the-judicial proceeding referred to, and that it was privileged. The demurrer was properly sustained, and the judgment of the Appellate Court is affirmed. Judgment affirmed.