Chudy v. Chudy

Paul Ward, Justice. This litigation relates to the immunity of a doctor from liability for certain acts or conduct. To better understand the issue, how it arose, and how it reaches this Court, we set out below a brief -summary of the background facts. On August 19, 1965 Mrs. Carolyn E. Chudy (appellant here) filed suit for a divorce from her husband; Brunan S. Chudy. On August 30, 1965 Dr. Amail Chudy (appellee here, and a brother of Brunan S. Chudy) allegedly signed a false certificate stating appellee was in need of psychiatric treatment. On the same day a hearing was held before the Probate Court relative to the condition of appellee, and the presiding judge ordered her to be taken to the Arkansas State Hospital for Nervous Diseases. Appellee was held in said hospital for one day when she was released, on a petition for a writ of habeas corpus, by the Probate Judge. On November 17, 1965 appellant filed a Complaint, and later an Amended Complaint, in circuit court against appellee wherein she made, in substance, the following allegations : (a) The defendant wilfully and intentionally made and signed a false statement or certificate, stating that she was psychotic and in need of psychiatric care, at the time appellee knew said statement was false. (b) Appellee’s purpose in making this statement was to have it submitted to the Probate Court in order to have her committed for psychiatric treatment in said hospital, knowing at the. time she was not psychotic. (c) At all times she was “sane and competent and free from psychosis and was not in need of mental or psychiatric care.” (d) Appellee was engaged in a conspiracy with his brother, Bruñan S. Chudy, for the purpose of as--sisting the said Brunan S. Chudy in deterring her in the aforementioned divorce proceedings, and to falsely and unlawfully deprive her of her liberty, and to humiliate, intimidate and embarrass hér. (e) She is the mother of three children who live with her, and she has suffered anxiety, humiliation and embarrassment over said detention and deprivation of her liberty, as well as from public notoriety, and that she will continué to so suffer. (f) She has suffered compensatory damages in the sum of $100,000 and punitive damages in the sum of $50,000 for which she prays judgment. To the above complaint appellee filed a" Motion for Summary Judgment which was sustained by the trial court, hence this appeal. It is our conclusion that the complaint states 8 cause of action, and that the trial court erred in granting the Motion for.Summary Judgment. It.is wéll settled by decisions of this Court that the Motion does not lie when material facts are in issue. Griffin v. Monsanto Co., 240 Ark. 420, 400 S. W. 2d 492. If, as alleged, appellee wilfully, knowingly and maliciously executed the false certificate and conspired with appellant’s husband to deprive (and did deprive) appellant of her liberty and freedom, causing her to suffer as pleaded, she has a right to recover damages in a court of law. In the case of Comfort v. Young, 69 N. W. 1032, Young filed “with the board of insane commissioners . . . charging that plaintiff [Comfort] was and is insane, and a fit subject for custody and treatment in the insane hospital of the state.” There it was held the trial court properly instructed the jury as follows:' “ ‘The real question for you to determine first in this case is: Was the information made by the defendant and filed by him honestly and in good faith, upon probable cause ...” The case of Brandt v. Brandt, 3 N. E. 2d, 96, 286 Ill. App. 151, is in point with the above holding that such allegations are matters for the jury to consider. There, plaintiff (appellant) sued her former husband (and others) alleging the defendants “conspired to commit plaintiff to a hospital for the insane unlawfully and improperly.” The case was tried by a jury which found appellant had not proved the allegations. On appeal, the Court cited cases which held “that one who maliciously and falsely sues out an inquisition of lunacy may be liable to the party injured.” The Court then said: ‘ ‘ There is no question of the law in that respect, . . . hut that is wholly beside the question” because there “is no proof here from which a conspiracy can be inferred.” Of course, in the case before us, appellant was not even allowed to offer proof of her allegations. In accord with the rule above announced are other cases cited in 145 A.L.R. at page 705 et seq. In reply to the above, and in urging an affirmance of the trial court, appellee makes this statement: “The sole question before the Court in this case is the application of the defense of absolute privilege.” In support of that position appellee cites cases which we will examine and which, we think, can be distinguished and are not applicable under the pleadings in the case here under consideration. (a) Hurley v. Towne et al, 155 Me. 433, 156 A. 2d 377, is a case where the doctor was called, as an expert witness, before the committing proceedings, and there the doctor was immune from liability for that reason. In the case before us appellee was not called and he was not a witness. The court pointed out that “every person shall have a remedy at law for every wrong,” but that public policy requires that witnesses shall not be restrained by fear. (b) MeZullo v. Maletz, 331 Mass. 233, 118 N. E. 2d 356, was an action based on Tort, where the doctor “was called upon to perform an important duty,” i. e. to sign a certificate of commitment. There the Supreme Court also pointed out that “Plaintiff does not contend that a case at Common Law is made.” (c) Dyer v. Dyer, 178 Tenn. 234, 156 S. W. 2d 445, is where appellant sued her former husband and two doctors for damages for false imprisonment in the state hospital. The- trial court had sustained a demurrer to the complaint. On appeal the Supreme Court affirmed. In doing so, however, the Court said that the statements of appellees “were made in a judicial proceeding under oath, in response to a call for their professional opinion and were, therefore, absolutely privileged.” (our emphasis) The Court again said that the statements were “responsive to questions propounded to the defendant by counsel while being examined ... in a judicial proceeding . . (our emphasis.) In the case here under consideration this is the situation: Appellee was not a witness in a judicial proceeding and he was not called by anyone to make a statement or certificate. He is charged with conspiring with the husband of appellant to have her taken from her home and children and placed in the State Hospital for Nervous Diseases, and is charged with doing so wil-fully, falsely, and maliciously to hinder the divorce proceeding and to cause her embarrassment and humiliation. It is our conclusion that appellant has a right to try to prove the allegations in her complaint. Reversed. Hakris, C. J. and Byrd, J., dissent. Jones, J., not participating.