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.
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 licensed 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.)
G.S. § 122-46 provides in part: "When the two physicians shall have certified that the alleged mentally disordered person is in need of observation and admission in a hospital for the mentally disordered and after the clerk has heard all proper witnesses he shall issue an order of commitment * * *, which shall authorize the hospital to receive said person and there to examine him and observe his 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 the foregoing procedure is a judicial proceeding within the rule of absolute privilege, and we so hold.
On the record here presented it appears that the defendant physician made the affidavit complained of in the due course of a proceeding previously instituted by the plaintiff's husband under the foregoing statutory procedure, and this is so notwithstanding the affidavit was made before 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
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 plaintiff's 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 plaintiff's 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 C. J., in Hedgecock v. Jefferson Standard Life Ins. Co., 212 N.C. 638, 641, 194 S.E. 86, 88: "When the plaintiff offers evidence sufficient to constitute a prima facie case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered." See also Thomas-Yelverton Co. v. State Capital Life Ins. Co., 238 N.C. 278, 77 S.E.2d 692.
BOBBITT, J., took no part in the consideration or decision of this case.