O'Barr v. Feist

• Decision Date: 06 June 1974
• Citation: 292 Ala. 440,296 So.2d 152
• Parties: Billy H. O'BARR v. Dr. Fredric W. FEIST. SC 335.
• Court: Alabama Supreme Court

Page 152

296 So.2d 152

292 Ala. 440

Billy H. O'BARR v. Dr. Fredric W. FEIST.

SC 335.

Supreme Court of Alabama.

June 6, 1974.

William M. Acker, Jr., and George R. Stuart, III, Birmingham, for appellant.

Ted R. Coggin and Curtis Wright, Gadsden, for appellee.

McCALL, Justice.

Billy H. O'Barr, the appellant, sued the appellee, a physician, for damages arising out of his alleged wrongful commitment to Bryce Hospital at Tuscaloosa, a state mental hospital. At the close of the evidence, the trial judge gave written instructions as to all counts in the complaint, directing the jury to return a verdict for the defendant physician. The appellee pleaded in short by consent the general issue.

Count B of the amended complaint claims in libel against the appellee for falsely and maliciously publishing of and concerning the appellant a written document filed in the probate court, which is a letter that reads as follows:

'February 19, 1968

'The Honorable Wiley J. Hickman

Probate Judge, Etowah County

Etowah County Courthouse

Gadsden, Alabama

'Re: Mr. Bill O'Barr

'Dear Judge Hickman:

'I have seen this man in the past for nervousness.

'According to his wife and mother-in-law he is said to be drinking and threatening to his family.

'I feel that admission to Bryce Hospital for evaluation and treatment would be of value.

'Sincerely,

'Fredric W. Feist

'FREDRIC W. FEIST, M.D.

'FWF:mmc Count B also alleges that the defendant published the letter with intent to defame the appellant and that as a proximate result of the letter he was arrested, jailed and sent to Bryce Hospital for approximately two weeks.

The record discloses that the letter in question was considered by the judge of probate in the wife's application to him, and in making his application to Bryce for the appellant's admission there as a patient. The judge of probate noted, in a written 'Statement Of Events Leading Up To Commitment' of the appellant, which is in evidence, that he made his application for appellant's admission to Bryce after visits 'on several different occasions' by the appellant's wife and mother-in-law, 'and on one or more occasions accompanied by (the wife's) father,' all testifying that the appellant was deranged, and that they feared for his life because of suicide threats and for Mrs. O'Barr's and the childrens' lives because of threats of murder. The probate judge said that upon weighing these testimonies along with the doctor's certificate, he made the application to Bryce Hospital.

Code of Ala., Tit. 45, § 208, requires that the judge of probate shall investigate the case. The two controlling statutes for commitment to state mental hospitals are §§ 208 and 210, Code of Ala., Tit. 45. They provide as follows:

' § 208. Application to and of probate judge for admission of patient; contents of.--When a relative, friend, or other party interested desires to place a person as a patient in one of the state hospitals, he shall apply to the judge of probate of the county in which the judge of probate of and the judge of probate, without delay, shall investigate the case, by examining witnesses, or not, as he sees fit, and, if he is reasonably convinced that the case is a suitable one, he shall make application to the superintendent at Tuscaloosa for his, or her admission, and shall accompany his application with as full and as explicit answers as possible to the following interrogatories describing the case: * * *.'

' § 210. Certificate of probate judge for admission of patient; form and contents of.--When informed by the superintendent that the person can be received as a patient, the judge of probate shall examine witnesses, at least one of whom shall be a physician, and fully investigate the facts of the case, either with or without a jury, and either with or without the presence in court of person, the grade of whose mental disqualification is under investigation, according to his discretion; and if the judge, or the jury, as the case may be, believe that the person is sufficiently defective mentally to be sent as a patient to a hospital for insane persons, the judge of probate shall make two copies of a certificate of mental disqualification, one copy of which shall be filed in his office and the other he shall send with the patient to the hospital; which certificate shall read substantially as follows: * * *.'

Section 210 then directs the probate judge to certify that he has called before him witnesses and a reputable physician and has examined then under oath, and further certify that sufficient proof has been adduced to satisfactorily show that the person is so defective mentally that he ought to be committed.

In our investigation we find that the action of the probate court on the application for commitment is a judicial function. In so holding, the court in Perkins v. United States Fidelity and Guaranty Co., 433 F.2d 1303 (5th Cir. 1970), observed:

'* * * In Rainey v. Ridgeway, 151 Ala. 532, 43 So. 843 (1907) it was said:

"Judicial power is authority, vested in some court, officer, or person, to hear and determine, when the rights of persons or property, or the propriety of doing an act, are the subject-matter of adjudication. Official action, the result of judgment or discretion, is a judicial act. The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specific duty arising from fixed and designated facts, is a ministerial act."

Therefore under the undisputed evidence, the letter was written with reference to a judicial proceeding.

The question of whether the communication was privileged or not by reason of its character, or the occasion on which it was made, is a question of law to be decided by the court. Kenney v. Gurley, 208 Ala. 623, 95 So. 34; Interstate Electric Co. v. Daniel, 227 Ala. 609, 151 So. 463.

Privileged communications are divided into two classes, namely, those which are absolutely privileged and those which are qualifiedly or conditionally privileged. In cases where absolute privilege obtains there is no liability. Depending upon the circumstances of the case, there may or may not be liability with respect to qualifiedly or conditionally privileged communications. The distinction between the two classes is said to be that the protection of absolutely privileged communications is not at all dependent upon their bona fides, while qualifiedly or conditionally privileged communications are merely freed from the legal imputation of malice, and become actionable only by virtue of the existence of express malice. Adams v. Alabama Lime & Stone Corp., 225 Ala. 174, 142 So. 424; Lawson v. Hicks, 38 Ala. 279, citing Cooke on Defamation, 28, 31, 60, and Starkie on Slander, 229, 292.

With respect to what are absolutely privileged communications, we made this observation in the case of Tonsmeire v. Tonsmeire, 281 Ala. 102, 199 So.2d 645:

'In defamation, the only absolutely privileged communications are those made in the course of legislative or judicial proceedings, and acts of state made under authority of law. See 33 Am.Jur. Libel and Slander, Sec. 125.'

In 50 Am.Jur.2d Libel and Slander, § 193, p. 696, it is stated:

'An absolutely privileged communication is one in respect of which, by reason of the occasion on which, or the matter in reference to which, it is made, no remedy can be had in a civil action, however hard it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously, and is false. To make the defense of absolute privilege available, the communication must be made on a privileged occasion; the circumstances under which the defamatory language is used are the occasion, and it is the occasion that is privileged. The privilege is a matter of public policy, and is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages.'

In Lawson, supra, at page 285, the court said:

'To the catalogue of absolutely privileged communications belong all words spoken or written by the court, the parties, or the counsel, in the due course of judicial proceedings, which may be relevant. The relevancy, or pertinency, of the calumnious matter is indispensible to its perfect and absolute freedom from all actionable quality; and being relevant, it can give rise to no civil responsibility, no matter how great the malignity or malice from which it may have originated. * * *.'

This court stated in Adams v. Alabama Lime & Stone Corp., 225 Ala. 174, 142 So. 424, that the Court of Appeals of New York in Moore v. Manufacturers Nat. Bank, 123 N.Y. 420, 25 N.E. 1048, 1049, well and concisely stated the American rule and the underlying principle, in the following language:

"There is another class of privileged communications where the privilege is absolute. They are defined in Hastings v. Lusk, 22 Wend. (N.Y.) 410, 34 Am.Dec. 330. In this class are included slanderous statements made by parties, counsel, or witnesses in the course of judicial proceedings, and are libelous charges in pleadings, affidavits, or other papers used in the course of the prosecution or defense of an action. In questions falling within this absolute privilege the question of malice has no place. However malicious the intent, or however false the charge may have been, the law, from considerations of public policy, and to secure the unembarrassed and efficient administration of justice, denies to the defamed party and remedy through an...