Fowler v. Donnelly

The majority opinion disposes of this case upon a ground which was neither presented in the court below nor argued on appeal. The defendant’s demurrer was interposed to test the sufficiency of the complaint, not on the ground that it failed to allege the falsity of the alleged defamatory statement, but on the ground that the statement was not libelous. In fact, in the oral argument defendant’s counsel conceded that “by demurring we admit that it [the alleged defamatory statement] was false.” Plaintiff’s counsel now learns for the first time that in an action of libel a complaint is fatally…