delivered the following dissenting opinion:
I can not concur in the view taken by the majority. I concede that the holding of the court in Ruohs v. Backer, 6 Heisk., 395 (19 Am. Rep., 598), is contrary to the great weight of authority, though I must insist the reasoning and justice of that holding are unassailable and unanswerable. Accepting as law, however the principle that statements made in the course of judicial proceedings by parties in their defense and by witnesses on examination are absolutely privileged, when they are pertinent and relevant, even though maliciously made, I think the present suit does not upon demurrer present such case.
Parties in their defense and witnesses in their examination should be privileged in making responses to pertinent charges and questions, because they are before the court upon compulsion and not upon their own motion, and they have nothing whatever to do with framing the issues or questions, but must meet them as made by others.
But I can not agree that a plaintiff may go into *532court upon his own motion, and frame pleadings and present issues to suit bimself, and under the issues thus presented libel a stranger to the record, and then defend himself from liability upon the plea that such libelous charges are pertinent to the issues which he. has formulated.
To illustrate: I can not agree that the purest, most innocent woman, of the highest standing, may with impunity be libeled as co-respondent in a divorce suit upon grounds of adultery, simply because such a baseless charge is pertinent to the charge made. Other illustrations can be given, and if this is the rule, no man or woman in the community can be free from malicious and unwarranted attacks upon character under the guise of judicial proceedings.
To make a practical application of the present case: Mr. McLanahan brings a suit against the city. He charges Mr. Crockett, a stranger to the record, with the crime of illegal voting. Whether he did vote illegally could be ascertained by an investigation of the registration record. There is no allegation that this was done. The charge is made without regard to its truth, recklessly, but, so far as we can see, without actual malice. But, if done through malice, the result would be the same; that is, because he had charged Mr. Crockett with matter pertinent to the issue Avith the city, he was privileged to make it, even though made ignorantly, recklessly, or with express malice.
*533In such case, when the libelant makes the issue himself, he should he required to show good faith and probable cause in charging a stranger with crime, even though pertinent and relevant to the issue. He should he required to answer, and show that in making the libelous charge he acted after investigation and upon well-grounded information which he believed to he true.
In other words, the gist of my dissent and protest is that no man or woman shall he maligned and traduced in even judicial proceedings, unless the charges are made in good faith and upon reasonable ground to believe they are true. Especially is this true when the party traduced is a stranger to the records, the means of information as to the truth of the charge are open and matters of record, and the issues presented are made by the same party who makes the charges.
Under the facts disclosed in this declaration, the defendant should be required to answer and show that his charges were made in good faith and with probable cause.
Nor can I agree that the question of pertinency or relevance is a question of law in all cases. The majority cite to support this proposition Lea v. White, 4 Sneed, 111; Shadden v. McElwee, 86 Tenn., 152 (5 S. W., 602; 6 Am. St. Rep., 821) ; Jones v. Brownlee (Mo.), 61 S. W., 792 (53 L. R. A., 448).
In both the Tennessee cases it is expressly said that *534pertinency and probable cause mean the same thing, and the question of probable cause or pertinency may be for the jury or not, according to the circumstances of the case. See, also, 13 Ency. Pl. & Pr., 107; 18 Am. & Eng. Ency. Law (2d Ed.), 1050.