#### AVY AGNES JARMAN v. DR. V. D. OFFUTT.

(Filed 24 February, 1954.)

1. Libel and Slander § 7c—

CChe general rule is that a defamatory statement made in the due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation, even though it be made with express malice.

2. Same—

A judicial proceeding within the rule of absolute privilege is not restricted to trials in civil actions or criminal prosecutions, but includes every proceeding of a judicial nature before a competent court, administrative agency, or officer clothed with judicial or quasi-judicial powers, including statements made in an affidavit pertinent to a judicial proceeding or which the affiant has reasonable grounds to believe is pertinent.

3. Same—

A lunacy proceeding is a judicial proceeding within the rule of absolute privilege.

4. Same—

In a lunacy proceeding instituted by the husband of the alleged incompetent by proper affidavit sworn to before the clerk, G.S. 122-42, a state*469ment of a physician sworn to before a notary public, G.S. 122-43, is absolutely privileged and will not support an action for libel.

5. Insane Persons § 1—

While the initial affidavit-application under G.S. 122-42 must be sworn to before the clerk or a deputy clerk, the affidavits of physicians under G.S. 122-43 may be sworn to before a notary public, and the statute permits affiant in the affidavit-application to act as intermediary in carrying the papers to and from the physician for the execution of the physician’s affidavit.

6. Trial § 24a—

Where plaintiff’s evidence establishes as a matter of law an affirmative defense set up by defendant, nonsuit is proper.

Bobbitt, J., took no part in the consideration or decision of this case.

Appeal by plaintiff from *Earns, J.,*at 15 June Term, 1953, of LeNOIR.

Civil action for libel.

Tbe gravamen of the plaintiff's cause of action as alleged in the complaint is that the defendant, a practicing physician, maliciously and without justifiable cause signed and published a statement that the plaintiff was suffering from a mental disease and was a fit subject for admission into a hospital for the mentally disordered.

The defendant, by answer, admits signing the statement on 6 June, 1951, but alleges by way of defense that shortly prior thereto the plaintiff had been under his direct care, observation, and treatment in a hospital for a period of about eight days; that the plaintiff “was suffering from an unstable and nervous condition which is ... in medical terms called . . . 'anxiety neurosis,’ a mental and nervous condition which, among other symptoms, is sometimes indicated by a marked state of anxiety, by an attitude of great magnification of any physical illnesses, by unjustifiable attention given to known minor troubles, by a sense of persecution, and by general intellectual deficiency, all of which symptoms were present in the plaintiff’s case . . that about three weeks after the plaintiff was released from the hospital, her husband, Clyde Jarman, came to defendant’s office “with a blank form of affidavits and questionnaires,” and advised the defendant that his wife had attacked him with a butcher knife in their home, and requested the defendant, as her recent attending physician, to fill in and sign one of the affidavits; “That in these circumstances, and being ... of the opinion the plaintiff needed such treatment as her . . . husband . . . expected to make available to her, this defendant did fill in and sign an affidavit constituting part of the entire Exhibit . . ; that the defendant’s act in signing the affidavit was part of the required procedure through which the plaintiff might be admitted to a hospital for mental' treatment and “the affidavit was signed only as a part of, and one *470step in, sucb program, ... to the end that the plaintiff, his recent patient, could receive treatment which . . . defendant believed she greatly needed.”

The material facts as developed by the plaintiff’s evidence may be summarized as follows: For some months prior to 8 May, 1951, the plaintiff had been under the care and treatment of her family physician, • Dr. Joseph S. Bower, at Pink Hill, where they both reside. On or about 8 May, 1951, Dr. Bower referred the plaintiff to the defendant, medical practitioner in the Oity of Kinston, and the plaintiff that day was admitted to the Lenoir County Hospital, located in Kinston. The plaintiff remained in the hospital under the defendant’s direct care and observation from 8 May until 17 May, 1951. During this period the defendant saw and observed her twice each day, and sometimes more. "When the plaintiff left the hospital on 17 May, 1951, she was accompanied home by her husband, Clyde Jarman.

On 6 June, 1951, the plaintiff’s husband appeared before John S. Davis, Clerk of the Superior Court of Lenoir County, and made affidavit, on printed form, as follows :

Affidavit of Mental Disoedee to Peocuee Admission.

Do Not Being oe Send Patient to Hosfital Until Told to Do So By Supeeintendent.

State of Nobth Caeolina, Lenoie County.

The undersigned makes oath that he has carefully observed Mrs. Avy Agnes Jarman, and believes her to be mentally disordered person and to be, in the opinion of the undersigned, a fit subject for admission into a Hospital for the mentally disordered.

Clyde D. Jaeman, Affiant.

( State relationship, if any)

Husband

Pink Hill, N. C.

Sworn and subscribed before me this 6th day of June, 1951.

John S. Davis (O.S.C.)

Thereafter the defendant (on printed form appearing as a part of the same document as the foregoing affidavit of Clyde D. Jarman), made affidavit before notary public John W. Earabow as follows:

State of Noeth Caeolina, Lenoie County.

The undersigned makes oath that he is licensed to practice medicine by the State of North Carolina, and that on May 8 to May 17, 1951, he care*471fully examined Avy Agnes.and believes bim to be suffering from a mental disease, and to be, in tbe opinion of tbe undersigned, a fit subject for admission into a hospital for tbe mentally disordered.

Y. D. Oistutt, M.D., Affiant

Kinston, N. C.

Sworn and subscribed before me this 6 day of June, 1951.

(LS) JoiiN "W. Fababow, N. P.

My Commission Expires: July 12, 1952.

Tbe printed form on which both tbe foregoing affidavits appear also contains form affidavit to be made by a second physician, like tbe one made by the defendant. But tbe form for tbe second physician’s affidavit was never filled in.

This printed form for admission to a State mental hospital, executed by tbe plaintiff’s husband before tbe Clerk of tbe Superior Court with supporting affidavit made by tbe defendant before a notary public, was found — exactly when not appearing — folded up and sticking behind a tool cabinet in tbe husband’s barber shop by a daughter of tbe plaintiff, now deceased, who bad gone to tbe barber shop with the plaintiff. Another daughter of tbe plaintiff testified that her deceased sister, who found the petition, showed it to her and that she “read it . . . and knew what it was and knew tbe meaning and import of tbe words.”

The plaintiff testified in substance: That she went to see the defendant the day her daughter gave her the petition; .that she asked bim to tell her what be bad found wrong with her while she was under bis care at tbe hospital; that be told her she bad diabetes and enlarged liver; that she then confronted bim with tbe petition and asked bim why be bad signed tbe affidavit to the effect that she was mentally diseased and a fit subject to be sent to a mental institution; that after some exchange of words, be stated that her husband told bim she had assaulted him with a butcher knife, and that he signed the affidavit “just to get shed of” her husband and that “be knew . . . Dr. Bower would not sign it”; that she then asked the defendant, *“ . .*did you see or hear anything by my actions

from the 8th until tbe 17th of May that would have made you think I was insane?’ and be said, No, ma’am, I certainly didn’t. I couldn’t tell whether you were crazy or not.’ ”

At tbe close of the plaintiff’s evidence tbe defendant moved for judgment as of nonsuit. Tbe motion was allowed.

From judgment in accordance with tbe foregoing ruling, the plaintiff appealed.

*J. Harvey Turner and B. S. Langley for plaintiff, appellant.*

*John G. Lawson for defendant, appellee.*

*472Johnson, J.

For the purpose of decision, it may be conceded tbat ordinarily the publication of written words imputing insanity or impairment of mental faculties is libelous *per se.*33 Am. Jur., Libel and Slander, Sec. 51; Annotation: 66 A.L.E. 1257. Also, for the purpose of decision it may be conceded that, nothing else appearing, a defamatory communication made to a relative of the defamed person is actionable. See Annotation: 25 A.L.R. 2d 1388.

In the case at hand the defendant places chief stress on the contention that the alleged defamatory statement was made in a judicial proceeding, and that therefore he is entitled to complete immunity under the doctrine of absolute privilege. We rest decision on the question raised by this contention.

The general rule is that a defamatory statement made in due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation, even though it be made with express malice. *Ramsey v. Cheek,*109 N.C. 270, 13 S.E. 775. See also *Harshaw v. Harshaw,*220 N.C. 145, 16 S.E. 2d 666; *Mitchell v. Bailey,*222 N.C. 757, 23 S.E. 2d 829; 53 C.J.S., Libel and Slander, Sec. 104, p. 168; 33 Am. Jur., Libel and Slander, Sec. 146.

As to what constitutes a judicial proceeding within the rule of absolute privilege, it is generally held that privilege is not restricted to trials in civil actions or criminal prosecutions, “but includes every proceeding of a judicial nature before a competent court or before a tribunal or officer clothed with judicial or gwasi-judicial powers.” 53 C.J.S., Libel and Slander, Sec. 104 (b), p. 169. See also 33 Am. Jur., Libel and Slander, Sec. 147.

Ordinarily, statements made in an affidavit which are pertinent to matters involved in a judicial proceeding, or which the affiant has reasonable grounds to believe are pertinent, are privileged, and, although defamatory, are not actionable. *Perry v. Perry,*153 N.C. 266, 69 S.E. 130; 33 Am. Jur., Libel and Slander, Sec. 152. See also Annotations: 12 A.L.E. 1247, 1250; 81 A.L.R. 1119.

And it is generally held that a lunacy proceeding is a judicial proceeding within the rule of absolute privilege. *Corcoran v. Jerrel,*185 Iowa 532, 170 N.W. 776, 2 A.L.R. 1579 ; *Perkins v. Mitchell,*31 Barb. (N.Y.) 461; 53 Am. Jur., Libel and Slander, Sec. 148; Annotations: 2 A.L.R. 1582; 66 A.L.R. hot. p. 1257. See also *Hodson v. Pare,*1 Q.B. (Eng.) 455.

In *Corcoran v. Jerrel, supra,*it was held that the testimony of a physician before a lunacy commission was privileged, though no notice of the lunacy proceeding was given to the alleged lunatic, it appearing that the proceeding had been conducted according to law.

*473In tbe ease at band tbe lunacy proceeding in wbicb tbe defendant made affidavit was instituted by tbe plaintiffs husband under tbe statutory procedure prescribed by G.S. 122-42 *et seq.*

G.S. 122-42 provides: “When it appears that a person is suffering from some mental disorder and is in need of observation or admission in a State hospital, some reliable person having knowledge of tbe facts shall make before tbe clerk of tbe superior court of tbe county in wbicb alleged mentally disordered person is or resides, and file in writing, on a form approved by tbe North Carolina Hospitals Board of Control, an affidavit that tbe alleged mentally disordered person is in need of observation or admission in a hospital for the mentally disordered, together with a request that an examination into tbe condition of tbe alleged mentally disordered person be made.

“This affidavit may be sworn to before tbe clerk of tbe superior court, or thé deputy clerk of court.”

G.S. 122-43, in so far as material, is as follows: “When an affidavit and request for examination of an alleged mentally disordered person has been made, . . . tbe clerk of the superior court . . ., shall direct two physicians duly licensed to practice medicine by tbe State . . ., to examine tbe alleged mentally disordered person ... in order to determine if a state of mental disorder exists and if it warrants commitment to one of tbe State hospitals or institutions for tbe mentally disordered. If tbe said physicians are satisfied that tbe alleged mentally disordered person should be committed for observation and admission into a hospital for the mentally disordered, they shall sign an affidavit to that effect on a form approved'by the North Carolina Hospitals Board of Control.

“Tbe affidavit may be sworn to before tbe clerk of tbe superior court, tbe assistant clerk of tbe superior court, or tbe deputy clerk of court, *or a notary public.”*(Italics added.)

G.S. 122-46 provides in part: “When tbe two physicians shall have certified thát tbe alleged mentally disordered person is in need of observation and admission in a hospital for tbe mentally disordered, and after tbe clerk has beard all proper witnesses, be shall issue an order of commitment . . ., wbicb shall authorize tbe hospital to receive said person and there to examine him and observe bis mental condition for a period not exceeding thirty days.”

It would seem that a proceeding to commit an alleged mentally disordered person to a State hospital under tbe foregoing procedure is a judicial proceeding within tbe rule of absolute privilege, and we so bold.

On tbe record here presented it appears that tbe defendant physician made tbe affidavit complained of in tbe due course of a proceeding previously instituted by tbe plaintiff’s husband under tbe foregoing statutory procedure, and this is so notwithstanding tbe affidavit was made before *474a notary public and does not appear to have been filed with, the Clerk of the Superior Court before whom the proceeding was pending. As to this, it is significant to note that while G.S. 122-42 specifically directs that the initial affidavit-application by which a proceeding is commenced must be “Sworn to before the clerk ... or the deputy clerk of court,” nevertheless, the companion statute, G.S. 122-43, expressly provides that the affidavits of the physicians “may be sworn to before a notary public.”

Moreover, it is noted that the statute prescribes no formal procedure to be followed by the clerk in transmitting the forms to the examining physicians and in getting them back from the physicians after execution. However, since the statute expressly provides- — no doubt for the convenience of the physicians — that the affidavits may be made before notaries, rather than before the clerk, it follows by necessary implication that the statute sanctions the procedure followed in the instant case whereby the document, containing initial affidavit-application of the plaintiffs husband and the defendant's affidavit, was delivered by the defendant to the plaintiff’s husband, the intermediary through whom the defendant received the document from the clerk in the first instance.

It thus appears that the facts on the issue of privilege are undisputed and support the single inference that the affidavit made by the defendant is absolutely privileged.

Here, then, the plaintiffs evidence establishes as a matter of law the truth of the defendant’s affirmative defense of absolute privilege. This being so, the judgment of nonsuit entered below will be- upheld under application of the rule explained and applied by *Barnhill, J.,*now *G. J.,*in *Hedgecock v. Ins. Co.,*212 N.C. 638, 641, 194 S.E. 86: “When the plaintiff offers evidence sufficient to constitute a *prima facie*case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered.” See also *Thomas-Yelverton Co. v. Ins. Co.,*238 N.C. 278, 77 S.E. 2d 692.

Affirmed.

Bobbitt, J., took no part in the consideration or decision of this case.