(dissenting).
Four times a tenant was haled into court by his landlord in an attempt to dislodge him from possession of dwelling property. Four times the tenant prevailed and the court found plaintiff’s suits to be without merit. All four suits were filed maliciously, without just cause, and in bad faith. The tenant suffered various items of damage which he listed in his complaint including not only the usual damages which might be expected to flow from such a series of suits but also special damages to his reputation because of the charge of disorderly conduct made against himself and wife. All that, the plaintiff below stated in his complaint and presumably could prove. And yet the trial judge refused to let him prove anything and refused to require any answering pleading by defendants. And the majority opinion upholds that action and says that plaintiff has not stated enough to make out a cause of action. I cannot agree that this plaintiff and others like him — victims of multiple, malicious actions — must be without a remedy. I think that, save in exceptional cases, it is repugnant to the spirit of present-day pleading to judge a claim in advance, and before any evidence is presented. This is not such an exception.
I agree that the courts should be open and accessible to the public and that no man should be deterred from asserting an honest claim by fear of having to answer a retaliatory damage suit if his action should happen to fail. But there must be some check upon the spirit of malice which, it is here charged, induced the filing of repetitious suits against the defendant (plaintiff here) in the face of consistently adverse court *868decisions. “The right to litigate is not the right to become a nuisance.” It is certainly not the right repeatedly to abuse the processes of the courts, twist them out of their intended purpose, and make of them instruments of oppression.
Bound as we are by the decision in the Peckham case, we are certainly not bound to extend the ruling there made and create a no-man’s-land in the law and invite unscrupulous plaintiffs to use multiple suits as a means of wearing a defendant down to the point of capitulation.
Moreover, there are two sharp points of difference between that case and this: (1) There the rule was applied to a single civil action; here we deal not with one action but with four, all instituted with malice, without just cause, and in bad faith, and all being part of a plan to thwart the law and deprive the tenant of property which was rightfully his. The complaint, in effect, charges a wrongful design, almost a bad-faith conspiracy to accomplish that improper purpose. (2) There the court limited the rule by denying recovery because there had been no arrest of the person or seizure of property “and no special injury sustained, which would riot necessarily result in all suits prosecuted to recover for like causes of action.” Here the complaint expressly charges injury to plaintiff’s reputation because of the charge that he and his wife had been guilty of disorderly conduct and had committed a nuisance. That, if he could prove it, would amount to the kind of special injury described in the Peckham case, for it is certainly not the.type of damage which would “necessarily result” in all landlord and tenant actions. How far plaintiff's proof would have gone in that direction we have no way of knowing, because the trial court refused to let him prove anything. But we must for present purposes accept as true his allegations that all of the suits were brought in malice and in bad faith and caused the special damages he described.
The principles I have stated are supported and well summarized in Shedd v. Patterson, 302 Ill. 355, 134 N.E. 705, 26 A.L.R. 1004. For a discussion of the general question, and rather full references to source material, see Peerson v. Ashcraft Cotton Mills, 201 Ala. 348, 78 So. 204, L. R.A.1918D, 540. See also American Law Inst. Restatement, Torts, Vol. 3, § 674, which deals with the right to recover for malicious prosecution of civil actions generally. See also section 679 which covers the right to damages for successive malicious suits; and note that under neither section is it necessary for plaintiff to show special or unusual damages. On the contrary, section 681 in the same title provides that plaintiffs in such cases shall be entitled to recover five separately listed items of general, as well as special, damages. •
From the authorities cited above, as well as from the Peckham case itself, I see no escaping the conclusion that it was error to shut off the plaintiff at the very threshold of the case and to refuse to allow him to present any evidence whatever in support of his claim. As was said in a recent case:1 "* * * if we are in one of the ‘open spaces’ in the law of this jurisdiction we must fill it as well as we can, with a view to the social interests which seem to be involved and with such aid as we can get from authorities elsewhere and from ‘logic, and history, and custom, and utility, and the accepted standards of right conduct.’ We cannot evade this duty; for unless we establish a right in the plaintiff we establish a privilege or immunity in the defendant.”
It is against the obliteration of plaintiff’s rights and the creation of an unwarranted ’immunity in the defendant that I protest.
Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 105 F.2d 62, 64.