"The same doctrine is generally held in the American Courts, with the qualification as to parties, counsel and witnesses, that their statements made in the course of an action be pertinent and material." For other cases dealing with the principle of immunity in judicial proceedings, see: Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954); Fowle v. Fowle, 255 N.C. 720, 122 S.E.2d 722 (1961); Godette v. Gaskill, 151 N.C. 52, 65 S.E. 612, 24 L.R.A., N.S., 265 (1909); Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957); Baggett v. Grady, 154 N.C. 342, 70 S.E. 618 (1911); Wall v. Blalock, 245 N.C. 232, 95 S.E.2d 450, 61 A.L.R.2d 1297 (1956); Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891), annot. 54 A.L.R. 2d 1298, 1302, 1305; King v. Hildebrandt, 216 F. Supp. 814 (S.D.N.Y. 1963); Sacks v. Stecker, 2 Cir., 60 F.2d 73 (1932); Keeley v. Great Northern Ry. Co., 156 Wis. 181, 145 N.W. 664, L.R.A. 1915C, 986 (1914); Tsesmelis v. Sinston State Bank, 53 S.W.2d 461, 85 A.L.R. 319 (Tex.Com.App. 1932); Hager v. Major, 353 Mo. 1166, 186 S.W.2d 564, 158 A.L.R. 584 (1945).
Bromund v. Holt, 24 Wis.2d 336, 129 N.W.2d 149 (1964). See also Gilpin v. Tack, 256 F. Supp. 562 (D.C.Ark. 1966), Fowle v. Fowle, 255 N.C. 720, 122 S.E.2d 722 (1961). This immunity from tort liability has been likewise applied to actions brought pursuant to 42 U.S.C. ยง 1983.
This action was originally brought against Dr. Willis H. Fowle, III, Dr. E.D. Shackelford and Dr. T. R. Cleek, to recover damages for the detention of plaintiff in a state hospital for mentally disordered persons, arising out of a judicial proceeding under Article 3, Chapter 122, General Statutes of North Carolina. A joint written demurrer filed by defendants Drs. Shackelford and Cleek was sustained and the plaintiff appealed. This Court, at the Fall Term 1961, in an opinion reported in 255 N.C. 720, 122 S.E.2d 722, sustained the demurrer on authority of Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 and Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248. An examination of the complaint herein leaves one in doubt as to whether the plaintiff is seeking recovery of an action for false imprisonment, malicious prosecution, or abuse of process.
The physician has witness immunity and not official immunity from defamation suits. Fowle v. Fowle, 255 N.C. 720, 122 S.E.2d 722 (1961); Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957); Jarmon v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954). It is not, however, inconsistent with these cases to hold that physicians involved as plaintiff was in this case are public officials for purposes of the New York Times rule.
Accordingly, defendant's report is absolutely privileged and cannot be made the basis of a cause of action for either medical malpractice or libel. Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954). See also Fowle v. Fowle, 255 N.C. 720, 122 S.E.2d 722 (1961). The granting of summary judgment in favor of defendant is