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:
"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.
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:
Section 210 then directs the probate judge to certify that he has called before him witnesses and a reputable physician and has examined them 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:
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 50 Am.Jur.2d Libel and Slander, § 193, p. 696, it is stated:
In Lawson, supra, at page 285, the court said:
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:
The statements which are complained about were certainly responsive to the issue in the cause before the probate court. Also, the statements were given in a judicial proceeding, so we conclude that they enjoy absolute privilege similar to that of testimony obtained in answers to questions asked a witness.
The following principle, in regard to the defamatory nature of such reports, is set forth in 73 A.L.R.2d 324, 333, viz:
See 50 Am.jur.2d, Libel and Slander, § 250, p. 768, where this is stated:
The question of the relevancy of the communication is a matter for the determination of the court, and the adjudicated cases have established a liberal view in the interpretation of the language used, and all doubts are resolved in favor of its relevancy or pertinency. Adams v. Alabama Lime & Stone Corp., supra.
The appellant states in his brief that the notation "FWF:mmc" in the lower left of the letter shows that the appellee dictated the letter to his secretary who transcribed it; and, he submits that under
We have read the record and do not recall finding where the appellant called upon the trial court to take judicial notice of the function and meaning he has accorded this alphabetical notation, "FWF:mmc," even if its function and meaning is a proper subject of judicial notice. Since this was not done in the trial court, we will not undertake to apply the principle of judicial notice.
In the case of Byrd v. State, 212 Ala. 266, 269, 102 So. 223, 227, we held:
While courts may take judicial notice of matters of common knowledge without suggestion by counsel, Weaver v. United States, 298 F.2d 496 (5th Cir. 1962), where the trial court did not do so, and the appellant did not suggest that the trial court do so, we are unwilling to reverse the trial court for not having done so. See 113 A.L.R. 259 and The Law of Evidence in Alabama, McElroy, 2d Ed., Vol. 3, § 480.01, p. 326. To reverse would result in our deciding an issue not presented, nor considered or decided by the trial court. In such instances we have held that we would not reverse a case. Cox v. Howard Hall Co., 289 Ala. 35, 265 So.2d 580; Prestwood v. Ivey, 275 Ala. 336, 154 So.2d 921; Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386.
The appellant argues that the facts support his Count C, which charges false imprisonment. His reasoning is that in order for an arrest for commitment to be lawful, the judge ordering such must have jurisdiction, and that to have jurisdiction, the probate court must act in strict accordance with the statutes, it being a court without original jurisdiction in such a cause. He maintains that the probate judge failed to comply with the statute by not examining the appellee physician under oath and that this deprived the court of jurisdiction.
Code of Ala., Tit. 45, § 210, supra, provides in part that the judge of probate shall examine witnesses, at least one of whom shall be a physician, and fully investigate the facts of the case, and that the judge shall certify that he has called before him credible witnesses and a reputable physician and has examined them under oath. The appellant argues that, not having complied with the statutory prerequisites, the probate court was without legal authority or jurisdiction to order the arrest of the appellee. Then, in arriving at his theory of the physician's liability, the appellant states in his brief as follows:
As we understand it, the appellant seeks to recover from the physician on the theory that the judge's order of arrest was void, because the probate court was without jurisdiction to enter it, and, that the appellee's letter was a participation in a known illegal proceeding, resulting in the physician's liability for false imprisonment of the appellant. We disagree.
Courts of probate in this state are not courts of special or limited jurisdiction
It follows that the order of the court to arrest the appellant on the lunacy warrant was not void. The court had jurisdiction over the commitment proceedings and over the appellant. As stated in Headley v. Ball, 284 Ala. 488, 226 So.2d 90:
In Perkins v. United States Fidelity and Guaranty Co., 433 F.2d 1303 (5th Cir. 1970), the plaintiff in a damage suit against the probate judge for wrongful commitment alleged that no hearing was had and that he received no notice of the proceedings. The probate judge had signed a certificate of mental disqualification and ordered him committed. In that case the court said:
Since the order of arrest was not void, the letter cannot be construed as a participation in an illegal proceeding on the premise advanced by the appellant. The appellant's contention that the appellee is liable for false imprisonment must therefore fail.
The gravamen of Count D is that the appellant's relatives, who desired to have him committed to Bryce Hospital, requested the appellee to direct a letter to the probate judge so that he would commit the appellant to the hospital, that the appellee wrote the letter (the one here in question) and gave it to the appellant's relatives knowing full well that they could not have him committed to Bryce Hospital without the letter, or the testimony of a physician, and knowing full well that the probate judge would commit the appellant upon the letter. The count then charges that the letter was deliberately false and misleading in that the admission of the appellant to Bryce for evaluation and treatment would be of no value, that the appellee was negligent in writing the letter, and negligently failed to make due inquiry as to whether appellant's commitment would be of value, that the appellee had not seen or communicated with the appellant for more than two months prior to writing the letter, which was written prior to the institution of any commitment proceeding. Appellant then avers that as a proximate consequence of the negligence aforesaid, he was admitted to the hospital while sane and suffered the damages alleged.
The appellant maintains that the evidence submitted was sufficient to support the allegations of negligence and proximate cause and that it was error to have given the affirmative charge as to this count.
Whether or not the proof offered showed negligence we need not decide. The letter is clear and unambiguous in its language and meaning. In it the appellee states to the probate judge that he has seen the appellant in the past for nervousness, the kind and extent of which he does not disclose, that the appellant's wife and mother-in-law said he was drinking and threatening his family, and that he (the appellee) feels that the admission of the appellant to Bryce Hospital for evaluation and treatment would be of value. The letter amounts to a medical opinion and report
We think that the statutes for commitment place the decision making power entirely within the sound discretion of the probate judge. It is by his hand that the order is made. The physician is no more than a witness in the proceeding and he has no authoritative means to foretell that the probate judge will act in accordance with his report and commit the appellant. The judge is free of any obligation to follow the physician's conclusions. The language of the statutes, Code of Ala., Tit. 45, § 205, as well as §§ 208 and 210, supra, makes the probate judge a free agent and charges him with the duty and responsibility of ascertaining and adjudging whether or not a person is sufficiently deficient or defective mentally to require that he be moved to a mental hospital. Section 205 expressly provides:
In the above cited case of Perkins v. United States Fidelity and Guaranty Co., supra, the court recognized this grave responsibility as belonging to the probate judge, when it said:
Where judicial discretion exists, no one knows full well what a judge may decree. They may very well surmise, but those who do, sometimes find themselves mistaken.
Our opinion is that the probate judge's order of commitment under the controlling statutes was the primary and efficient cause for the appellant's being sent to Bryce Hospital, not the evidence given in the case by the physician or any other witness. The judge must depend on evidence to make his decision, but his decision is his own act that brings about the results.
In Rhiver v. Rietman, 148 Ind.App. 266, 265 N.E.2d 245 (1970), the appellant alleged that the appellee doctor at the request of the appellant's wife, carelessly and negligently made and rendered a medical opinion and report to the effect that the appellant was in such a condition mentally that he should be institutionalized for treatment. The appellant was ordered committed to a hospital where he underwent observation until his release two days later. On appeal, the court, in addressing itself to the law that, to be actionable, negligence must be the proximate cause of the plaintiff's injuries, said:
"We subscribe to the wisdom and correctness of that decision."
We conclude that the affirmative charge as to Count D was properly given; and, for the same reason, there was no error in giving a similar charge as to Count E of the complaint, which purports to allege willfulness and wantonness.
In view of the result we have reached, we see no occasion to write to the issues of the sufficiency of the appellee's pleas Three and Four as tested by the appellant's demurrer which was overruled. The judgment is affirmed.
COLEMAN, J., concurs.
MERRILL, BLOODWORTH, FAULKNER, and JONES, JJ., concur specially.
HARWOOD and MADDOX, JJ., concur in the result.
HEFLIN, C. J., not sitting.
BLOODWORTH, Justice (concurring specially).
I concur in those portions of Mr. Justice McCALL'S opinion dealing with the libel and false imprisonment counts. I concur in the result with respect to the other counts, as I do not wish to be understood as retreating from either the positions I took, or from the opinions I expressed, in my special concurrence in Phillips v. Giles, 287 Ala. 469, 252 So.2d 624 (1971), (dealing with commitment of insane persons), in my opinion for the Court in Lawson v. General Telephone Company of Alabama, 289 Ala. 283, 267 So.2d 132 (1972) (dealing with proximate cause), or in my dissent in City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972) (dealing with proximate cause).
MERRILL and JONES, JJ., concur.
JONES, Justice. (concurring specially).
I concur in the result reached in the majority opinion in its holding that the trial Court did not err in the giving of written instructions as to all counts in the complaint, directing a verdict for the defendant. My reason for so concluding is limited to that portion of the majority opinion which discusses the two classifications of privileged communications. I agree with
The language quoted from 50 Am.Jur.2d, Libel and Slander, along with the language from Lawson, 289 Ala. at page 285, 267 So.2d 132, make clear the policy reasons for the absolutism of such rule and the condition of relevancy in order for the testimony to gain the status of privileged communications.
Here, the doctor's letter, at least insofar as the doctor was concerned, constituted testimony in a judicial proceeding and its content was fully relevant and material to the litigation at hand. If the law, from considerations of public policy, extends its umbrella of immunity from civil liability to the most slanderous statements made in the course of judicial proceedings insofar as civil actions for libel and slander are concerned, then lesser degrees of culpability for the commission of the same offense must of necessity come under the same protection. This means that Count D (negligence) and Count E (wantonness) are subject to the same defect as Counts B (libel) and C (false imprisonment).
It should be pointed out that not every such action for negligence (nor for that matter every action for libel) would be protected against civil liability by the "absolutely privileged" rule. The "relevancy" test is always applicable. Suppose, for example, the physician, through an act of negligence, reported to the court on the wrong patient, thereby leading to the confinement in the mental institution of the wrong person. In such instances the relevancy test removes the cloak of immunity and an action for negligence would lie.
There is another aspect of this case (referred to earlier by inference) which, admittedly, makes this case extremely close as to the validity of the negligence and wantonness counts. The doctor's letter, or the substance thereof, was not given as testimony in open court. Indeed, the letter was not even sworn to. Additionally, the record of the proceedings in the probate court, save a memorandum by the probate judge prepared well after the fact, fails to disclose anything which could comport to a judicial proceeding. One could not ascertain from the official court file (of which the probate judge's later memorandum is not properly a part) that the jurisdiction of the probate court had been invoked. To put it in the mildest terms possible, serious considerations are raised as to the validity of the proceedings resulting in the commitment order of this plaintiff to Bryce Hospital. Under such circumstances, i. e., in the absence of a showing that the jurisdiction of the court had been invoked, the judge himself may be outside the immunity doctrine and liable personally for his conduct.
Nevertheless, I am constrained to the conclusion that the test as to whether the "absolutely privileged" rule is here applicable must be viewed from the perspective of the physician in his writing and furnishing this letter to the probate court. Certainly, as far as he was concerned, Dr. Feist had every right to assume that his letter to Judge Hickman was being furnished to the court in a matter in which its jurisdiction had been invoked and that his letter was to constitute testimony in a legal proceeding.
Having so concluded, I would not reach the other points discussed in the majority opinion and I would agree with the reservations expressed by Justice BLOODWORTH in his special concurring opinion.