This is an action for damages for libel. The court sustained a general demurrer to the amended complaint1 and entered judgment dismissing the action, from which judgment this appeal is taken. Error is predicated on the action of the trial court in sustaining the demurrer and in entering judgment.
It is alleged that in a prior suit, wherein respondent Drumheller was plaintiff and appellant Dayton and his wife were defendants, Drumheller filed an affidavit, a copy of which is attached to the amended complaint as an exhibit, the alleged defamatory matter being set forth in the body of the amended complaint in haec verba:
“Affiant further says that prior to the trial of this action he had inquired óf a number of persons if they would testify as to the value of the said ranch, but of the persons so inquired those who' were familiar with the ranch refused to testify and gave as their reasons therefor that the defendant Dayton was a dangerous man and had the reputation of burning up the property of his neighbors; and that they did not wish to involve themselves in any difficulty with him as they were afraid he would burn up their property or do them physical violence. It was only after the trial of this action and the general indignation of the public over the miscarriage of justice in which the said trial resulted that the plaintiff was *287able to secure witnesses who were willing to testify as to the value of the said land; that for obvious reasons the plaintiff has not heretofore and does not now disclose the names of such persons.”
It is further alleged by innuendo that respondent, by the language above quoted, “charged and intended to charge plaintiff with the crime of arson.”
Whether or not the words quoted from the affidavit, in the amended complaint, amount to a charge of arson, unless coupled with the innuendo, we are not called upon to decide. It is perfectly clear, however, that taken in connection with the innuendo, the amended complaint alleges in substance that respondent wrote and published a charge of arson of and concerning this appellant. Under the statutes of this state, the crime of arson is a felony, punishable by imprisonment in the penitentiary. The rule is well settled that words falsely published of another, amounting to a charge which, if true, would subject the party charged to infamous punishment, are in themselves libelous, or, as is commonly said, libelous per se. (Douglas v. Douglas, 4 Ida. 293, 38 Pac. 934; 1 Cooley on Torts, 3d ed., p. 377; 1 Kinkead’s Commentaries on Torts, p. 769.) The particular charge, that of arson, has been frequently held to fall within the foregoing rule. (1 Cooley on Torts, 3d ed., p. 382; Clugston v. Garretson, 103 Cal. 441, 37 Pac. 469; Cox v. Strickland, 101 Ga. 482, 28 S. E. 655; Taylor v. Ellington, 46 La. Ann. 371, 15 So. 499; 1 Kinkead’s Commentaries on Torts, p. 769, and cases cited in note 64.)
The libelous or defamatory words were used in a judicial proceeding. Language used in a judicial proceeding is protected by the privilege which attends such a proceeding. This privilege may be either absolute or qualified.
We will first consider whether or not the words used fall within the protection of the absolute privilege. Respondent does not seek to question the rule hitherto established in this court that libelous matters used in a judicial proceeding, in order to be protected by this privilege must be pertinent or have relation to the subject of the inquiry (Carpenter v. Grimes Pass Placer Mining Co., 19 Ida. 384, 114 Pac. 42; see, *288also, Wyatt v. Buell, 47 Cal. 624; Maulsby v. Reifsnider, 69 Md. 143, 14 Atl. 505, and discussion in Gosewisch v. Doran, 161 Cal. 511, Ann. Cas. 1913D, 442, and note 444, 119 Pac. 656), but insists that the words used in the affidavit above referred to are pertinent and material.
What is meant by pertinency, relevancy and materiality in this connection is well expressed in the case of Union Mutual Life Ins. Co. v. Thomas, 83 Fed. 803, 28 C. C. A. 96, where it is said:
“It is perhaps not necessary that it be in all cases material to the issues presented by the pleadings, but it must be legitimately related thereto, or so pertinent to the subject of the controversy that it may, in the course of the trial, become the subject of inquiry.”
It should be remembered that these words were used in an affidavit filed in support of a motion for a new trial. The grounds for a new trial are wholly statutory, and are set forth in- C. L., sec. 4439. Subdivision 4 thereof, defining one of the grounds as: “Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial,” is the only subdivision under this section to which such an affidavit could bear any possible relation. Tested by the requirements of this subdivision, the defamatory matter set forth in the affidavit and relied upon as a basis for recovery in the present action cannot be regarded as pertinent or having any legitimate relation to the application for a new trial, which was the subject at issue in which the words were used. One of the essential qualifications of such evidence, in order to be pertinent to such an issue, is that it must be newly discovered. The language of the affidavit precludes absolutely the idea that the evidence therein referred to is newly discovered, respondent affirmatively stating that its existence was known to him prior to the trial. No legal reason is given, nor are any facts stated in the affidavit from which one may be inferred, for not producing the evidence at the trial. The defamatory matter could have no possible legal bearing upon the application for a new trial, and hence was neither pertinent nor *289had any legitimate relation to the subject then at issue before the court. (Hyde v. McCabe, 100 Mo. 412, 13 S. W. 875; King v. McKissick, 126 Fed. 215; Rich v. Eason (Tex. Civ.), 180 S. W. 303; Lesser v. International Trust Co., 175 App. Div. 12, 161 N. Y. Supp. 624; Barnett v. Loud, 226 Mass. 447, 115 N. E. 767; Union Mutual Life Ins. Co. v. Thomas, supra; Moore v. Manufacturers’ Nat. Bank of Troy, 123 N. Y. 420, 25 N. E. 1048, 11 L. R. A. 758; McLaughlin v. Cowley, 127 Mass. 316.) Therefore, it affirmatively appears upon the face of the amended complaint that the libelous words used are not protected by the absolute privilege.
Having reached the conclusion that the matter complained of is not absolutely privileged, still the presumption of its privileged character obtains by reason of the occasion and it is necessary that the complaint state facts showing that it is not qualifiedly privileged.
There is considerable confusion in the decided cases as to what allegations are necessary for this purpose. All the eases agree that the plaintiff must allege that the publication was made maliciously, i. e., with express malice or malice in fact, and for the purpose of defaming the party to whom the statements relate. In other words, it is the malicious intent to defame which removes the protection of the qualified privilege. (Gardemal v. McWilliams, 43 La. Ann. 454, 26 Am. St. 195, 9 So. 106; Myers v. Hodges, 53 Fla. 197, 44 So. 357; Johnson v. Brown, 13 W. Va. 71.)
The appellant herein has alleged both actual malice and intent to defame. It is alleged that the words used:
“Were at all times and now are false, defamatory and malicious and that the writing, composing and publication thereof, as aforesaid, was and is wrongful, malicious and defamatory, and tended and do tend to impeach the honesty, integrity and reputation of this plaintiff, and to financially injure the business of this plaintiff.”
And it is also alleged that the defamatory words:
“Were and are false, malicious, defamatory and untruthful and were made, composed, written and published of and about plaintiff for the purpose of securing an unjust and unfair ad*290vantagé of this plaintiff and of wronging, defrauding and defaming this plaintiff and of injuring and impairing his credibility as a witness and his good name before the court and the community in which he resided. ’ ’
It is, therefore, apparent that the amended complaint herein conforms to the rule that the plaintiff must allege that the publication was made maliciously and for the purpose of defaming the party to whom the statements relate, i. e., that it was made with the malicious intent to defame.
Is it necessary for the plaintiff to go further and allege that the libelous matter was published with knowledge or belief that the same was not pertinent to' the issue, or, in other words, was made without reasonable or probable cause, and that the publication was not made in good faith?
So far as the sufficiency of the complaint is concerned, the question whether or not the libelous words were pertinent or had relation to the subject of the inquiry is one of law for the court, and the facts showing that the defamatory matter is not pertinent and has no relation to the subject of the inquiry must appear upon the face of the complaint. This, coupled with the allegation of express malice or malice in fact, and of intent to defame, is sufficient, .for the allegation that the libelous words were used with the malicious intent to defame completely negatives the existence of good faith.
With reference to the legal question confronting the court in its effort to determine whether the complaint states facts sufficient to constitute a cause of action, the pertinency of the matter to the occasion is what is meant by probable cause. (Cook on Defamation, p. 60, quoted in Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49; Lea v. White, 36 Tenn. (4 Sneed) 111; Shadden v. McElwee, 86 Tenn. 146, 6 Am. St. 821, 5 S. W. 602.)
We hold, therefore, that the question whether or not the libelous words are pertinent or have relation to the subject of the inquiry is one of law for the court to determine from the facts alleged in the complaint. The question of whether or not the defendant knew or believed that his libelous words were not pertinent and had no relation to the inquiry, or *291whether he made the statements without reasonable or probable cause, or whether or not, his statements were published in good faith, are questions of fact for the jury. This issue, so far as the sufficiency of the complaint is involved, is presented by the affirmative allegation that the libelous words were published with the malicious intent to defame.
The judgment is reversed and the cause remanded for further proceedings in conformity with the views herein expressed. Costs are awarded to appellant.
Rice, J., concurs.