Dyer v. Dyer

• Decision Date: 29 November 1941
• Parties: DYER v. DYER et al.
• Court: Tennessee Supreme Court

156 S.W.2d 445

178 Tenn. 234

DYER v. DYER et al.

Supreme Court of Tennessee.

November 29, 1941

Error to Circuit Court, Anderson County; H. B. Brown, Judge.

Action by Ethel Elliott Dyer against Earl Dyer and others, for damages for false imprisonment. To review a judgment of dismissal, plaintiff brings error.

Affirmed.

Walton Perkins and David B. Rogers, both of LaFollette, and R. L Pope, of Knoxville, for plaintiff in error.

Cassell Ladd & Carson, of Harriman, and Phil C. Mason, A. L. Fox Jas. M. Underwood, and Homer H. Wallace, all of Clinton, for defendants in error.

CHAMBLISS Justice.

This is an action seeking damages for false imprisonment in the State Hospital for the Insane. Three defendants are named, Earl Dyer, the former husband of plaintiff, and Doctors Cox and Hicks. Demurrers were sustained and the case dismissed. Appealing, plaintiff in error concedes the correctness of the action of the trial court on the demurrer of Earl Dyer, shown to have been the husband of the plaintiff when the alleged wrongs were inflicted. Error is assigned for the other defendants below, it being insisted that a cause of action is stated in the declaration as to them.

The charge against these defendants is that they made affidavits on which the judgment of insanity and the commitment to the Hospital were based; that the statements made in these affidavits were made "knowingly, maliciously and falsely," and that the making of these affidavits was the proximate cause of her incarceration in the State Hospital for a period of twenty-one days, to her great humiliation, loss and injury.

It is insisted for defendants in error that, even if the statements in said affidavits were false and made, as charged, with malice, that they were made in a judicial proceeding under oath, in response to a call for their professional opinion and were, therefore, absolutely privileged; that no action for damages can be based thereon; and that the trial Judge did not err in sustaining their demurrer on this, among other grounds.

Cases from other jurisdictions are referred to by counsel on both sides, and there has been some divergence in the holdings in different jurisdictions. However, we think it unnecessary to review these cases, since we think this question has been settled in this State since Cooley v. Galyon, 109 Tenn. 1, 14, 70 S.W. 607, 609, 60 L.R.A. 139, 97 Am.St.Rep. 823. In his opinion in that case Mr. Justice Shields reviewed the text book and decision authorities and approves this quotation from Lea v. White, 4 Sneed, 111, 113, 115:

"There is a class of cases which are absolutely privileged, and depend in no respect for their protection upon their bona fides. The occasion is an absolute privilege, and the only questions are whether the occasion existed, and whether the matter complained of was pertinent to the occasion. In this class are embraced judicial proceedings. The proceedings connected with the judicature of the country are so important to the public good that the law holds that nothing which may be therein said with probable cause, whether with or without malice, can be slander, and, in like manner, that nothing written with probable cause under the sanction of such occasion can be libel."

In the Cooley v. Galyon case our earlier case of Shadden v McElwee, 86 Tenn. 146, 5 S.W. 602, 6 Am.St.Rep. 821, relied on for plaintiff in error, was reviewed and in some respects distinguished. In concluding his discussion of this case, Mr. Justice Shields said: "But it is there expressly held, upon the authority of Lea v. White and Odgers, Sland. & L., above cited, which are quoted and approved in the opinion of the...