Springer v. Steiner

178 P. 592, 91 Or. 100, 1919 Ore. LEXIS 26

• Court: Oregon Supreme Court
• Decided: February 11, 1919
• Status: Published

Opinion

McBRIDE, C. J.

1. We will first consider the motion for a directed verdict urged on behalf of Dr. Howard. We have carefully examined the evidence and fail to find any testimony indicating that Dr. Howard in any way counseled, assisted or suggested that plaintiff should be proceeded against as an insane person. The complaint was made by Mr. Hull, plaintiff’s father, and the arrest and confinement of plaintiff was had possibly at his instigation before the complaint was made and while Dr. Howard was at his home in Linn County. The evidence only goes to the extent of showing that Dr. Howard believed plaintiff insane, and tried to induce her to leave her association with a man who claimed to be a “New Thought Healer,” whatever that may be, and who Dr. Howard evidently considered a fraud and quack, and go with Howard and his wife, who was plaintiff’s sister, to their home in Linn County. He does not deny that he thought her insane. Indeed, in view of the filthy and profane letters written by her when in the asylum, and her erratic conduct and conversation in Portland, he would appear to have had some grounds for that opinion. The facts with respect to Dr. Howard’s connection with plaintiff’s incarceration, when simmered down to concrete propositions, are:

1st. That he earnestly recommended an operation as a means of relief for plaintiff’s nervous condition.

2d. That he attempted to persuade her to abandon the treatment with the spiritual healer, whom she designated as her “Christ” and godfather, and according to her statement to him, which is not denied, proposed to make her the one sole woman as his new religious cult.

3d. That he urged her to go home with him and his wife.

4th. That he wrote to Dr. Green, the “Healer” aforesaid, asking him to induce plaintiff to leave Portland and come to Linn County to her relatives, and threatened Green with legal proceedings if he failed to do so.

5th. That he visited and conversed with plaintiff while she was confined in jail prior to being sent to the asylum, and asked her if she was still satisfied that she was “healed.”

Plaintiff’s father, who made the complaint, denies that Dr. Howard ever suggested she be sent to the asylum. Dr. Howard denies it. He was not present, or in the city, when the proceedings were had in reference to plaintiff’s sanity, and there is absolutely no evidence he even suggested or in any way participated in the proceedings. The motion for a directed verdict should have been allowed as to him.

2. "We will now consider the case with reference to Dr. Holcomb. It is not claimed that Holcomb was the cause of the confinement of plaintiff in the county jail, or of any treatment she received there. His connection begins lawfully in obedience to a requirement of the county judge to examine her as to her mental condition. There is no evidence as to what took place at the examination, although the testimony of plaintiff indicates that some examination was had. Plaintiff claims that Dr. Holcomb came to the cell in jail with “some other fellows” and talked to her. She says:

“There was no explanation made; they did not introduce themselves; they came in and asked me some questions and I answered their questions until I got indignant, when I thought they asked me questions they had no business to, and then I would not answer any more.”

She thinks they were there probably fifteen minutes. She does not state what questions were asked but was asked the following question by her counsel; “Did any of the gentlemen in the cell there ask you any question that tended to an examination of your mental condition1?” To which she replied, “No, sir.” This was a mere conclusion, or opinion, of the witness as to the significance of the questions asked her, and shed no light upon the matter of the thoroughness of the examination.

Later on, plaintiff, detailing a conversation between herself and Dr. Holcomb in reference to her examination, said:

“I asked him if he remembered some remarks he made, and I refreshed bis mind so that he did remember some remarks made during the farce which was called an examination.”

It appears, independent of the certificate of the physician and the record made by the court, that there was an examination made, of which we have no details except that plaintiff was pleased to call it a “farce.”

3. In addition to this Judge Cleetin, the county judge, testified that he had some recollection of being present at the examination; that he saw plaintiff’s husband and talked with the doctors and talked with her and heard some questions propounded to her and her answers. He explains there are several hundred such examinations in the course of the year, and it is difficult to remember any particular case. He states he was personally present part of the time the examination was being held, but sometimes was called away for a short time, but was there enough to see what was going on and get the drift of the examination. Witness was not clear whether the examination was held in his office or the county jail. We further have the record made by the County Court, which recites every jurisdictional fact concerning the examination. It is true that upon the application of plaintiff the court attempted two years after the record was made to set it aside, but unless it was a wholly void record it had no jurisdiction so to do. The principal objection to this record there urged and here relied upon by plaintiff’s counsel, is that no warrant of arrest was issued by the court to bring the plaintiff before the court for examination as to her sanity. It is true that there is no record of the issuance of such a warrant, but it is also true that there is no provision of the law requiring a warrant for that purpose.

4. Section 3 of Chapter 342, Laws of 1913, provides that when the county judge is notified in writing that any person by reason of insanity is unsafe to be at large, etc., he “shall cause such person to be brought before him.” Such notification in writing had been made by Mr. Hull, plaintiff’s father, and plaintiff was at that time in the custody of the sheriff. The judge “caused plaintiff to be brought before him,” whether by a verbal order to tbe sheriff or by a warrant or written order is not material. She was before him and defendant Holcomb and another physician were appointed to examine her as to her sanity, and upon snch examination she was duly adjudged insane. The complaint signed by Mr. Hull was loosely drawn it is true, but it stated enough to set the machinery of the court in motion.

This identical question came up in the case of Sprigg v. Stumps (C. C.), 8 Fed. 207, in which case the application for the examination was not verified, and no warrant was issued for the arrest of the person alleged to have been insane. There was some sort of an order made directing the sheriff to bring the accused person before the judge, concerning which the court said:

“But admitting, what we think very doubtful, that the order upon which Fulton was arrested and brought before the county judge, although in the form of the statute, was void, as being in conflict with Section 9, supra, of the Constitution, concerning the issue of warrants, still the subsequent inquisition by the judge, and the order thereon committing Fulton to the asylum, are founded upon the oath of the physician who examined him and pronounced him insane. If then, the validity of the subsequent appointment of a guardian and the sale by him of the lunatic’s property depend upon the legality of the procedure in which Fulton was declared insane, it is certainly sufficient if the inquisition and commitment were legal, even if the original arrest was otherwise.”

So here, even if a warrant or other paper directed to the sheriff, had been the proper and regular mode of procedure to authorize the sheriff to bring the plaintiff from one room in the courthouse to another for the purpose of examination, a disregard of this technical requirement would not oust the court of jurisdiction to inquire into the matter. In the case above cited, many of the objections to the record are practically identical with those raised by counsel in this case on plaintiff’s application to set aside the order adjudging her insane, and none of these objections were held valid. Where the record is void upon its face the court may at any time expunge it: Ladd v. Mason, 10 Or. 308; Jones v. Jones, 59 Or. 308 (117 Pac. 414). But if the judgment is merely irregular the remedy is by appeal or review. We conclude, in the present instance, that the order committing plaintiff was valid, and the County Court had no jurisdiction to order it canceled or set aside two years after it was made.

5, 6. The burden of proof is upon the plaintiff to show either that the physicians made no examination as to the condition, or that the certificate was maliciously false. Her opinion that it was a “farce” states no probative fact. Her statement that no question was ashed her in a fifteen minute examination, which she admits was made, which “tended to an examination of her mental condition” is another conelusion stating no fact upon which a verdict could be founded. Plaintiff testified that after her release from the asylum she had a conversation with Dr. Holcomb, in which he impliedly admitted that his certificate was based on information derived from the relatives. If such was the fact the jury would have a right to consider it in determining whether the certificate was negligently given, but not that it was given maliciously or in bad faith. ■ It is not the intention of the writer to intimate that the examination was not carefully conducted in this case. His personal opinion is exactly to the contrary, but there are at least some shreds of evidence from which the jury might form such an opinion.

7. Without discussing further the errors alleged by defendants, we will now call attention to certain conditions which render it impossible for plaintiff to recover under the testimony here adduced. It will be remembered that this is not an action against Dr. Holcomb for malpractice in not using reasonable skill and diligence in examining into and diagnosing plaintiff’s condition. It is an action for negligently causing plaintiff to be falsely arrested and imprisoned in the asylum. Whatever may have been the character of the examination (and the record made by the county judge, who had general supervision over it, says that it was “careful”), the defendant Holcomb did not and could not arrest or cause the plaintiff to be confined in the asylum. The defendant’s examination and certificate would be utterly worthless in themselves to cause the confinement of plaintiff. They are merely evidence (of a high order it is true) which the county judge may accept or reject.

Under the old statutes in England the certificate of the examining physician was the basis for the arrest and confinement of an alleged insane person. There was no written complaint required and no examination before any court or judicial officer. The person alleging insanity of another could apply to two physicians to examine the alleged lunatic, and if these physicians certified to his insanity the complaining party could, by a request in writing to the keeper of any licensed asylum, have the subject summarily seized and locked up without further ceremony. Under this statute it was held that an action would lie against a physician for a careless and negligent examination, whereby. a sane man was incarcerated, the leading case on this subject being Hall v. Semple, 3 Foster & Finlayson’s Rep. 337. But in most of the states in the Union a judicial examination is required, and the alleged lunatic must be formally adjudged insane by some judicial officer upon the evidence before him, which includes the sworn certificate of the physicians, before he can be deprived of his liberty. The physician therefore becomes practically an expert witness, whose testimony the court may accept or reject as its own views may suggest. Such being the case, the physician would seem to be entitled to the same privileges and immunities as other witnesses, among which has always been included an exemption from a civil action for any testimony given in the course of judicial proceedings.

Such is the view taken by the Supreme Court of Massachusetts under a statute almost identical with our own, in which it is said:

“But it is manifest from the provisions to which we have referred that, although the certificate of the examining physicians is intended to have great 'weight, and no doubt does in practice, a commitment cannot take place without an order from the judge and a finding by him that the person committed is insane, and without the judge seeing and examining the person alleged to be insane, or stating the reason for not. doing- so. In this case there is no averment in the declaration that there was no oral testimony, or that, if there was, the judge did not base his finding upon it, but upon the certificate furnished by the defendants. It is difficult to see, therefore, how, assuming that there was negligence in the examination, and that the certificate was false, it can be said that that was the proximate cause of the commitment: See Force v. Probasco, 43 N. J. Law, 539. But, further, the examining physicians are called upon to perform an important duty. In discharging it they are not engaged'in the ordinary practice of their profession. If they do not occupy a quasi official or judicial position, they at least occupy the position of persons whose testimony is expressly required by statute in aid of judicial proceedings having for their object to ascertain whether the condition in regard to dipsomania or inebriety of the person to whom they relate is such that he should be restrained. It is important that the judges who are charged with the duty of investigating cases of dipsomania or inebriety and insanity should have the assistance, in forming their conclusions, of persons whose profession is such as to give their opinions peculiar value in such matters. The statute recognizes this by requiring the certificate. And we think that the privilege which attaches to parties and witnesses in other judicial proceedings, to parties instituting criminal proceedings, and to cases of privileged communications should attach to examining physicians in cases like the present, and that, so long as they act in good faith and without malice, they should be exempt from liability: See Hoar v. Wood, 3 Met. (Mass.) 193; Barker v. Stetson, 7 Gray (Mass.), 53 (66 Am. Dec. 457); Rice v. Coolidge, 121 Mass. 393 (23 Am. Rep. 279); Tasker v. Stanly, 153 Mass. 148 (26 N. E. 417, 10 L. R. A. 468); Gifford v. Wiggins, 50 Minn. 401 (52 N. W. 904, 18 L. R. A. 356). It is more important that the administration of the laws in the manner provided should not be obstructed by the fears of physicians that they may render themselves liable to suit than it' is that the person certified by them to be insane, or a dipsomaniac, or inebriate should have a right of action in case it turns out that the certificate ought not to have been given”: Niven v. Boland, 177 Mass. 11 (58 N. E. 282, 52 L. R. A. 786).

There is not the slightest evidence of malice or conspiracy between Dr. Holcomb and any other person to cause plaintiff to be confined in the asylum. There is only a shred of testimony and that of doubtful value, that his examination was not so thorough as it might have been — nothing to impeach his entire good faith in making the certificate. We believe the decision above quoted is in accord with sound public policy and correctly states the law and adopt it as applicable to the case at bar. The court should have directed a verdict as to the defendant Holcomb.

The judgment will be reversed and the cause dismissed.

Reversed and Dismissed.

Bean and Johns, JJ., concur.