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:
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,
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,
And it is generally held that a lunacy proceeding is a judicial proceeding within the rule of absolute privilege.
Corcoran v. Jerrel,
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.
*473 In 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 *474 a 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.,
Affirmed.