Jarman v. Offutt, 379

• Citation: 80 S.E.2d 248,239 N.C. 468
• Decision Date: 24 February 1954
• Docket Number: No. 379,379
• Parties: JARMAN, v. OFFUTT.
• Court: United States State Supreme Court of North Carolina

Page 248

80 S.E.2d 248

239 N.C. 468

JARMAN, v. OFFUTT.

No. 379

Supreme Court of North Carolina.

Feb. 24, 1954

J. Harvey Turner and R. S. Langley, Kinston, for plaintiff, appellant.

John G. Dawson, Kinston, for defendant, appellee.

JOHNSON, Justice.

For the purpose of decision, it may be conceded that 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.R. 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 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. 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, 136 A.L.R. 1411; Mitchell v. Bailey, 222 N.C. 757, 23 S.E.2d 829; 53 C.J.S., Libel and Slander, § 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 quasi-judicial powers.' 53 C.J.S., Libel and Slander, § 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, 31 L.R.A.,N.S., 880; 33 Am.Jur., Libel and Slander, Sec. 152. See also Annotations: 12 A.L.R. 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. bot. 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.

In the case at hand the lunacy proceeding in which the defendant made affidavit was instituted by the plaintiff's husband under the 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 the facts shall make before the clerk of the superior court of the county in which alleged mentally disordered person is or resides, and file in writing, on a form approved by the North Carolina Hospitals Board of Control, an affidavit that the 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 the mental condition of the alleged mentally disordered person be made.

'This affidavit may be sworn to before the clerk of the superior court, or the deputy clerk of court.'

G.S. § 122-43, insofar as material, is as follows: 'When an affidavit and request for examination of an alleged mentally disordered person has been made, * * * the clerk of the superior court * * *, shall direct two physicians duly iicensed to practice medicine by the State * * *, to examine the alleged mentally disordered person * * * in order to determine if a state of mental disorder exists and if it warrants commitment to one of the State hospitals or institutions for the mentally disordered. If the said physicians are satisfied that the 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.

'This affidavit may be sworn to before the clerk of the superior court, the assistant clerk of the superior court, or the deputy clerk of court, or a notary public.' (Italics added.)

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