Hugo Ash v. Otto Zwietusch.

Filed at Ottawa January 20, 1896.

Libel—when statements in answer, in chancery, are privileged. Allegations in the answer to a bill by a traveling salesman for an accounting for services and moneys received, that the complainant was discharged for embezzlement, are not so wholly irrelevant and impertinent as to deprive them of privilege.

Ash v. Zwietusch, 57 Ill. App. 157, affirmed.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.

This is an action on the case, by appellant, against appellee, for libel. The alleged libelous matter was contained in appellee’s answer filed to appellant’s bill of complaint brought against appellee for an accounting for services rendered and moneys received under a contract between the parties, by which appellant rendered services for appellee as traveling salesman and as general manager of a branch of the business in the sale of soda fountains and supplies, for a certain fixed salary and a percentage of the profits. The pleadings in the chancery suit are set out in the declaration. The bill alleged, among other things not necessary to mention, that the accounts between them were long and complicated, and remained unsettled through the fault of appellee; that appellee had violated the contract by placing some one else in charge of the branch business, thereby displacing him as general manager; that he had put an end to the contract; that he had collected $4500 for a leasehold interest for which he was entitled to credit, and had refused to credit him with the same; that appellee had, *456in various matters set out, acted in the utmost bad faith with him.

The alleged libelous matter in the answer is the following: “Denies that he violated the provisions of the contract giving to complainant the sole and exclusive right to act as manager of said Chicago branch, but admits that he .discharged the complainant from his employ for good reasons, among other reasons that he collected about $1600 belonging to defendant and appropriated the same to his own use without the consent or knowledge of defendant; denies that the accounts between complainant and defendant are long and complicated or much involved in any way, but states the accounts for the year 1892 were fully and satisfactorily settled in the month of February, 1893, between the defendant and complainant in Milwaukee, and that since that time, until the discovery by the defendant of the embezzlement by complainant of a large sum of money, there never has been any pretense by complainant that the accounts were unsettled in any way; denies any sum will be found due Ash on an accounting, but alleges there will be found to be due a large sum of money, being the money collected by the complainant belonging to defendant while he was acting as agent of the defendant, and appropriated to his own use by complainant without the consent or knowledge of defendant, to the amount of, to-wit, $1600.”

The declaration alleges that the defamatory matter contained in the answer was wholly irrelevant and impertinent to the matter in controversy, and was inserted in the answer and written and published maliciously and without probable cause, and that it was wholly false, etc. The trial court sustained the demurrer to the declaration. Its judgment has been affirmed by the Appellate Court.

McMuedy & Job, for appellant:

In communications in the course of judicial proceedings, relevancy or pertinency to the subject matter of the *457inquiry is indispensable to this privilege. In Cooley on Torts (p. 213) the author says: “The privilege must be restrained by some limit, and we consider the limit to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions which have no relation to the cause or subject matter of the inquiry.” See, also, Borthwick on Libel, 215; Aylesworth v. St. John, 25 Hun, 158; Lawson v. Hicks, 38 Ala. 279; Hoar v. Wood, 3 Metc. 197; Mower v. Watson, 11 Vt. 541; Smith v. Howard, 28 Iowa, 56; Moore v. Bank, 123 N. Y. 420; Wyatt v. Buell, 47 Cal. 624; McLaughlin v. Cowley, 127 Mass. 316; Doda v. Piper, 41 Hun, 254; Warner v. Paine, 2 Sandf. 195; Gilbert v. People, 1 Denio, 41.

John C. Patterson, for appellee.

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. *458We 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.