Ayres v. Russell

The statute respecting the care and custody of the insane (Laws 1874, chap. 446) does not deprive the alleged lunatic of the right of trial by jury. It does, however, provide for his summary and temporary confinement “upon the certificate of two physicians, under oath, setting forth the insanity of such person.” But this confinement is “for the care and treatment” of the insane party. This confinement must not exceed “five days, unless within that time such certificate be approved by a judge,” etc.

Obviously, these are humane provisions, intended to secure proper care and treatment for the insane, and to protect third persons from their irresponsible violence. The

The defendant contends that “ may,” as here used, means “must,” because the rights of the public and of third persons are concerned, and that there can be no relaxation of statutory safeguards in favor of liberty. Conceding the general rule to be as claimed, it is obvious, from the nature of the case and from the words of the statute, that the judge is vested with a discretion adequate to the exigency. Some cases are too plain to admit of doubt; others are doubtful. The judge must act as he thinks most wise, under circumstances which sometimes must be painful, but leaving no doubt as to the propriety of prompt and decisive action, and at other times of such doubt and delicacy as to suggest every precaution the statute affords. But when summary action has been taken, and the alleged lunatic is confined upon the certificate of the physicians approved by the judge, the lunatic himself, or any friend in his behalf, “may, within three days after such order or decision, appeal therefrom to a justice of the-supreme court, who shall thereupon stay his being sent out of the county,, and forthwith call a jury to decide upon the fact of lunacy.” Section 11. Such an appeal was taken in this case, and the jury pronounced the plaintiff sane, and he was thereupon discharged.

The plaintiff urges that by his confinement until his discharge, he was deprived of his liberty without due process of law, or the judgment of his peers. Const., art. 1, § 1.

A person charged with felony is first arrested and upon examination before the magistrate, committed to bail to await the action of the grand jury. He may not be indicted, or if indicted, may be acquitted upon trial. Meanwhile he lies in.jail awaiting his discharge upon the final judgment of the law that he is not guilty. In the absence of a malicious prosecution, it has'never been alleged that he was deprived of his liberty without due process of. law or the judgment of his peers. The state cannot take all steps at once, and when provision is made that they shall take them pne after another, with reasonable- care and expedition, in the manner and form approved by experience and sanctioned by law, the individual, who, as it must sometimes happen, suffers a temporary deprivation of liberty, must necessarily remain without remedy. The state provides, the best system its- wisdom suggests, but as long as it. must be administered by men,'it cannot guarantee against-occasional mistakes. The defendant, the recorder, had the-powers of a judge of a court of record. His approval of the

In Lange v. Benedict ( 73 N. Y., 35 ) the judge pronounced a sentence which he had no jurisdiction to pronounce, but he supposed he had, and it was his duty to decide whether he had or not. He had the statute for his guide, bat he had to interpret the statute, and he did not interpret it aright. But he had to decide, he was no mere volunteer; he made a mistake, but he made it in the discharge of his master’s (the government’s) business, and his wrongful act w-as the government’s, not his own, and he incurred no personal liability.

No cause of action is stated in the complaint against the recorder. The charge of a lack of due and ordinary care and prudence adds no support to a charge of liability for judicial acts. Public policy forbids that a disappointed suitor should be clothed with such a weapon with which to smite or annoy a judge who decides against him.

The defendants, the physicians, were such experts as the statute authorizes to make the certificate of the plaintiff’s insanity. No allegation is made in the complaint of a defect of a proper request or information upon which they proceeded to examine the plaintiff and make their certificate, and none can be presumed. The physicians followed the forms of the law. Whether the reasons set forth by

We think the physicians owed the plaintiff the duty of making the examination with ordinary care. Their duty must be measured by the trust which the statute reposes in them, and by the consequences flowing from its improper performance. They assumed the duty by accepting the trust. They are not judicial officers, but medical experts. They are not clothed with judicial immunity, and are chargeable with that negligence which attaches to a professional expert who does not use the care and skill which his profession per se implies that he will bring to his professional work.

It is urged that the physicians are privileged by the statute, and their" certificates are privileged communications. Doubtless this is true if they discharge their duty with ordinary care; but in the absence of such care, their privilege cannot protect them. Their privilege is that as long as they do their duty with the care and skill the statute presumes and requires, they are not responsible to the plaintiff for the consequences, however hard they may be, for in such a case, the law afflicts the plaintiff; but when they do not use such care and skill it is their personal negligence which afflicts him.

The remaining question is whether the complaint sufficiently alleges negligence upon the part of the physicians. They urge that facts are not stated, but only conclusions of. law. We think, however, that the portion of the complaint above-quoted imputing negligence is a statement of conclusions of fact. Plainly if all the details were set forth, the sum of" which would amount to the charge of negligence, the complaint would be open to the objection of pleading evidence. All the evidence may be set forth in a complaint without setting forth any case at all. The charge of negligence embraces the sum of all the evidence necessary to establish it, and is therefore a conclusion of fact.

The judgment of the special term is reversed as to the defendants Russell and O’Leary and their demurrer overruled with costs of this court and of the court below, with the usual leave to withdraw the demurrer and answer on payment of costs, and is affirmed as to the defendant Gould with costs.

I think that the meaning of the first article of chapter 446, Laws of 1874, cannot be understood without reference to some statutes which were in existence when it was passed and some of which are in existence, now.

The Revised Statutes, part 1, chapter 20, 634, is of the safe care and keeping of inmates. Section 1 provides; that when a person is so far disordered in his senses, as tc endanger his own person or the person or property of others, if he has sufficient property, it is the duty of his committee to confine him.

Section 2 provides that, if such person is not of sufficient property, the like duty rests on certain relatives, if they are able.

Section 4 provides for the case of refusal or neglect as aforesaid or of want of means. It authorizes the overseers of the poor to apply to two justices. If they are satisfied it is dangerous to permit the'lunatic to go at large they are to issue their warrant to the constables and overseers commanding them to apprehend and confine the lunatic, 1

Section 12 provides that previous sections do not affect the power of the chancellor.

Chapter 135, Laws 1842, section 20, provided that under the statute above cited the lunatic should be sent in ten days to the lunatic asylum or some other private or public asylum, etc.

And section 21 gave to any lunatic or his friend a right of appeal- in three days to a judge who might call a jury,' and with .the aid of two physicians decide on the fact, and either discharge or confirm the order,.

Section 22 forbade justices, superintendents and overseers under the said title of the Revised Statutes to order or approve without the evidence of two reputable physicians in uniting.

This title of the R. S. seems to be unrepealed. Whether the act of 1842 is repealed or not I need not inquire. It is enough to notice that these sections 20, 21 and 22 did not establish a system for the apprehension and confinement of lunatics. They only placed safeguards and restraints around the powers given by the Revised Statutes.

We now come to chapter 446, Laws of 1874. We shall find in like manner that while this statute in article 1 embodied several of the provisions of the act of 1842, it did not establish a system of apprehension and confinement, but imposed restrictions and safeguards on the power given by the Revised Statutes.

Thus section 1 requiring the certificate of two physicians is substantially section 22 of the act of 1842. Sections 2 and 3 are only restrictions as to the character of the physicians.

Section 6 gives the overseer of the poor a right to apply, in case of neglect of a committee or of friends, to a judge, in accordance with section 4 of the title of the Revised Statutes.

But it will be seen on careful examination that nowhere in the statue is authority given on the mere certificate of two physicians approved by a judge to apprehend and confine any one.

The Revised Statutes above cited place the duty of .confining dangerous lunatics on the committee and on relatives;. in case of neglect or inability they place this duty on the overseers. The statute of 1814 puts the restriction that no confinement shall be made without the certificate provided for; but by no means declares that such certificate is sufficient authority.

Now if we look at the Revised Statutes we shall see that it is not every lunatic who may be confined. It is one who is “furiously mad or so far disordered as to endanger,” etc.

Section 1. And this idea is continued in the article of 1814, sections 6, 8, 9, 11.

If we turn again to section 6 of the act of 1814, which gives overseers the right to act in case of neglect of the committee,- etc., and then inquire when the committee, etc., have neglected their duty, we must turn to section 1 of the title of the Revised Statute to learn what their duty is. And that section has just been cited. It is when the lunatic is “furiously mad,” etc. It appears to me that the Revised Statute wisely based the ground of confinement on danger to himself or others. And I see no authority to carry the restraint further than when such danger exists.

I am, then, not able to hold that the certificates of two physicians, approved by a county judge, are of themselves authority to apprehend and confine a lunatic. Such certificates and approval contain no order or direction to any one. They are addressed to no one. They command nothing. If they authorize a jailor to act and apprehend and confine they equally authorize any other person. And if we turn to section 2, which provides for the appeal, we shall find that if the jury do not find the appellant sane, the_“ judge shall confirm the order for his being sent immediately to the asylum.” What order can be confirmed where none exists?

I have gone over these statutes at length, because I think a dangerous laxity has prevailed. In this very case the plaintiff was not confirmed by his committee, for there

It seems to me that the statutes do not place the right in the hands of any man who may assume it to apprehend and confine an alleged lunatic; or to initiate proceedings for that purpose.

I do not mean to say that the committee of a dangerous lunatic may not confine him. The Revised Statutes make that his duty. Before doing that, he possibly must obtain these two certificates and the judge’s approval, although the old principles gave him fun power over the lunatic after “office found.”

Nor do I deny the power of the relatives to do the same, having first obtained the certificates and approval; acting, I suppose, at their peril.

But when none of these parties act, then the proceeding must be under section 6. There must be a decision of a judge that the lunatic is dangerous and a warrant accordingly.

I have stated these views, not because I dissent from the result reached by my brother Lardón. I agree with him that the act of the recorder was so far judicial that he is not liable to the plaintiff. I agree with him also that as this demurrer admits that the physicians were negligent, they are hable for their negligence, as they would be for negligence in any other matter of their practice. Of course what may be proved on the trial we cannot say.

dissenting.—I agree with my associates that the complaint does not contain the statement of a cause of action against defendant Gould, and that the order of the special term, which is to that effect, should be affirmed, with costs. A_careful examination of the case has led me to the conclusion that the complaint is also defective, in failing to state a legal cause of action against the other defendants, Bussell and O’Leary, and that the order of the special term should also be affirmed as to those defendants, with costs.

In determining the question whether the last named defendants can be held liable under the facts stated in the complaint, a distinction should be recognized between the present action and one brought by a person against a physician for malpractice, based upon the- ordinary relation of patient and physician, because in such an action there

The legislature seem to have intended to create, by such statute, a complete system in regard to the care and treatment of the insane, without regard to whether such malady had developed in the patient a type which was apparently temporary or permanent, mild or violent. The first section of such act provides as follows: “Section 1— No person shall be committed to, or confined as a patient in, any asylum, public or private, or in any institution, home or retreat, for the care and treatment of the insane, except upon the certificate of two physicians, under oath, setting forth the insanity of such person. But no person shall be held m confinement in any such asylum for more than five days, unless within that time such certificate be approved by a judge or justice of a court of record of the county or district in which the alleged lunatic resides, and said judge or justice may institute inquiry, and take proofs as tó any alleged lunacy before approving or disapproving of such certificate, ana said judge or justice may, in his discretion, call a jury in each case to determine the question of lunacy ” The second section contains the following: “ Section 2 It shall not be lawful for any physician to certify to the insanity of any person for thepurpose of securing his commitment to any asylum, unless said physician be of respectable character, a graduate of some incorporated medical college, a permanent resident of the state, and shall have been in actual practice of his profession for at least three years. And such qualifications shall be certified to by a judge of any court of record. No certificate' of insanity shall be made except after a personal examination of the party alleged to be insane, and according to forms prescribed by the state commissioner in lunacy, and every such certificate shall bear date of not more than ten days prior to such commitment.” These defendants had each received from the county judge of Albany county a certificate of qualification as prescribed by such statute, and were

They were called upon to ascertain and determine whether the plaintiff was insane to such an extent as to require restraint and treatment, and in determining such question, they were compelled, by such statute, to make a personal examination of the plaintiff, and from the evidence thus disclosed, and such other facts and circumstances as were brought to their knowledge, to conclude in regard to the mental condition of the plaintiff and the necessity of subjecting him to restraint and treatment, and they were required to weigh the evidence and to deduce therefrom a conclusion in regard to the mental condition of the plaintiff, and in the event that they adjudged him insane; "they were required by such statute to make a certificate under oath setting forth the insanity of such person.

It will be perceived by referring to the statute, that upon the determination of such physicians and the certificate which they are authorized to make, the person so adjudged insane may be restrained for the purpose of treatment for a period not exceeding five days, without the approval of a judge or justice of a court of record. So it would seem that by force of such statute, such certificate may be regarded in a certain sense a mandate by which the determination of such physicians may be carried into effect. It seems, therefore, but reasonable to conclude that the legislature intended to confer upon such physicians powers exceeding those possessed by a mere expert or by a physician in the ordinary treatment of a patient under a private retainer.

It will be further perceived that such examination, and the certificate issued thereupon, are by force of such statute made the basis for the action of the judge or justice whose approval of such certificate is by the statute required in

In the present case the certificates were presented to the defendant Gould, who was then recorder of the city of Albany, and approved by him April 15, 1887, and before the plaintiff was arrested and committed as an insane person.

It would seem that the certificates made by the defendants should also be regarded as privileged communications; they were intended for, and actually constituted the basis upon which the recorder acted. Perkins v Mitchell ( 31 Barb., 462 ). In that case Justice Emott, at page 466, remarks: “ To give -to a statement made by a physician, which would otherwise be criminatory and libelous, a privileged character he must not only utter it as a medical man, but it must be made in the discharge of a duty, and to a person who has or is engaged in a corresponding duty in reference to the subject-matter.” The learned justice cites in support of the principle thus enunciated, Harrison v. Bush, 32 Eng. L. & Eq. Rep., 173; Van Wyck v. Aspinwall, ( 17 N. Y., 190 ). The doctrine thus stated, seems applicable to the case under consideration, and to shield the defendants Bussell and O’Leary from liability in this action in which no malice is alleged. See, also, Bradley v. Fisher ( 13 Wall., 335 ). The defendant Gould, in his official capacity, approved of such certificates, and for such act he is prosecuted by the plaintiff. As such recorder he possessed all the powers of a justice of the supreme court at chambers. Laws of 1872, chapter 284, section 10, In approving of such certificates, he was required to examine them, and to consider and pass upon the facts therein stated, with the view .to determine their sufficiency, and. to conclude in regard to the necessity of subjecting the plaintiff to restraint and treatment as an insane person. Manifestly in discharging such duty he was required to exercise judgment and discretion, in passing upon the merits of such application, and in discharging such duty hé acted in a judicial capacity. It is insisted that the statute made it incumbent upon the recorder to summon a jury to pass upon the insanity of the plaintiff; Such is not the casé, the statute provides as follows: “ May, in his discretion, call a jury in each case to determine the question of lunacy.” It was discretionary with him whether- or not to call such jury, as the statute is clearly permissive and not mandatory: The wisdom displayed in so framing said statute is apparent, as in some cases the facts presented would doubtless disclose a case so clear that the aid of a jury would be unnecessary, and the delay and the expense consequent upon calling them should be avoided, while in other cases, a degree of doubt might exist, which would render it quite proper to resort to the jury.

Considering the nature of the proceeding, the requirements of such statute, the character of the duties which it

In view of the law upon this subject, as it exists, it seems allowable to hold that such protection extends not only to the judge while engaged in the trial of a civil action in court; but also to a magistrate or other person when engaged in conducting a proceeding which requires the performance of duties judicial in character, and when the proceeding has been created by the statute which authorized such magistrate or other person to discharge the duty, and while acting within its limits the authority conferred.

In Perkins v. Mitchell (supra, at page 471), Justice Emott further remarks, upon this subject, “ This is not confined to trials of civil actions or indictments, but includes every proceeding before a competent court or magistrate in the due course of law, or the administration of justice, which is to result in any determination or action of such court or office.” Weaver v. Devendorf, 3 Den., 117 .

Judge Beardsley says, at page 120, “The assessors were judges acting clearly within the scope and limit of their authority; they were not volunteers, but the duty was imperative and compulsory; and acting as they did, in the performance of a public duty, in its nature judicial, they were not liable to an • action however erroneous or wrongful their determination may have been. But I prefer to place the decision on the broad ground that no public office is responsible in a civil suit for a judicial determination, however erroneous it.may be, and however malicious the motive which produced it.

Such acts, when corrupt, may be punished criminally. The rule extends to judges from the highest to the lowest; to jurors, and to all public officers, whatever name they may bear in the excercise of judicial power.” The opinion expressed in that case received the approval of the entire court, and seems to have a- direct and forceable bearing upon the case .we are considering. In that case the defendants were assessors, deriving their authority from a statute. In this case the defendants derive' their authority from a statute, and I think the duties which they were required to perform were as clearly judicial hi their nature as were those which devolved upon the assessors in the case referred to. Neither the assessors nor the defendants this’action were compelled to accept the office; yet, having accepted, they were bound to discharge the duties thereof.

At page 229 Judge Folger remarks : “So that there is a more general meaning to this phrase ‘ subject matter ’ in this connection than power to act upon a particular state of facts. It is the power to act upon the general, and so to speak, the abstract question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power.” The complaint contains sufficient tó show by what authority the defendants acted, and the source-from'which it was derived and'the extent thereof, and the character of the duties which they performed.

The complaint contains the following statements : “ And the plaintiff further alleges, on information and belief, that his said arrest and imprisonment was caused and secured by the defendants, by means of certain certificates and approval thereof, prepared and issued by them, against the plaintiff for his arrest, as follows : That is to say, the certificates of said Selwyn A. Russell and Daniel V. O’Leary, subscribed to and made by them under oath before John Gutmann, police justice and justice of the peace of the city and county of Albany, on the 14th day of April, 1887, certifying and declaring, in effect, that they were residents of the city of Albany, in the county of Albany, and were graduates of the Albany Medical College, and had practiced as physicians, the said Selwyn A. Russell for ten years and the said Daniel V. O’Leary for fifteen years, and that their qualifications as medical examiners in lunacy had been, duly attested and certified by Hon. John C. Nott, county judge of the county of Albany; that on the 13th day of April, 1887; they personally examined the plaintiff, said Alfred Ayres, of the city of Albany, in said county ; that he was a man about sixty-three years of age, was married, and was by occupation a carpenter, and that he was insane, and a proper person for care and treatment under the provisions of chapter 446 of the Laws of 1874 ; that the grounds whereon they formed this opinion, separately stated, although they acted in concert together, were substantially the same, viz., that plaintiff was under delusive beliefs with respect to his wife, and under delusive ideas with respect to his wife and daughter, and that there were no

And the plaintiff alleges, on information and belief, that the said defendant, Anthony Gould, as recorder of the city of Albany, did on the 15th day of April, 1887, fully and formally accept, adopt indorse and approve the said verified certificates of said Selwyn A. Russell and Daniel V. O’Leary, and their said opinions and the said grounds thereof, as sufficient in matter of fact and in form of execution for the arrest and confinement of the plaintiff as insane ,and a proper person for care and treatment under the provisions of chapter 446 of the Laws of 1874.

Such statement of facts, considered in connection with the provisions of the statute under which the defendants acted, and which is referred to by the plaintiff in his complaint are sufficient to show that the defendants had acquired jurisdiction of the subject-matter, and were therefore authorized to discharge the duties which they performed, which wére judicial in their character, and consequently the plaintiff failed to state a cause of action entitling him to recover herein against the defendants or either of them. Stewart v. Hawley, 21 Wend., 552 ; Bradley v. Fisher, supra; Lange v. Benedict, 73 N. Y., 12 ; Harrison v. Clark, 4 Hun, 685 ; Harman v. Brotherson, 1 Denio, 537 ; Hall v. Munger, 5 Lans., 105 ; Bumstead v. Read, 31 Barb., 665 .

The following allegation in the complaint indicates the theory upon which the plaintiff seems to rely to maintain this action. And the plaintiff further alleges on information and belief, that said verified certificates, and said approval thereof, in manner and form aforesaid, were each and all of them, made and issued by the defendants, without proper and ordinary care and prudence and without due examination, inquiry and proof, into the mental and physical condition of plaintiff’s health, and without due examination, inquiry and proof into, the fact whether the plaintiff was sane of insane, and that they were not made and issued in form, substance, and effect in compliance with law, or in compliance with the requirements of said chapter 446 of the Laws of 1874, and were invalid.”

Such statements are very general and partake more of the characteristics of conclusions, than of the statement of materia,! facts, and are more objectionable from the consideration that they constitute the gravamen of the pleading. Such statements seem to imply that the defendants exercised a certain degree of care and prudence, but not to the extent which the plaintiff deemed necessary, according to the standard of duty which he has chosen to adopt.

! If the defendants had acquired jurisdiction of the subject-matter, and acted judicially in discharging their duties, the law exempts them from liability in a civil action, even though they may have acted without exercising .proper and