Bode v. Schmoldt

Owen, J. The action was defended on the ground, first, that there was no evidence to show malice; second, that there was probable cause to believe the plaintiff insane; third, that defendant acted upon the advice of counsel; and fourth, that the result of the proceeding was an adjudication that the plaintiff was insane. The establishment of any one of these defenses precludes a recovery. For reasons to ap, -pear hereinafter it must be held upon this record as a matter of law that there was probable cause to' believe the plaintiff insane, which obviates the necessity of considering whether the other defenses were established. The procedure in the nature of lunacy proceedings prescribed by statute may be briefly summarized as follows: Whenever any person is believed to be insane, application may be made by three citizens to the judge of the county court for a judicial inquiry as to his mental condition. Upon [11] receipt of such application the judge shall appoint two disinterested physicians to examine the person believed to be insane; said physicians shall by personal examination of such person, and inquiry, satisfy themselves as to such person’s mental condition and report the result of their examination to said judge. It is required that said physicians, before making such examination, give notice to the person to be examined that application has been made for inquiry into his mental condition, withholding the names of the applicants if they deem it wise, and that he can be heard in respect to the same, and if in their judgment such notice would be injurious to such person, or of no advantage to him, they may withhold such notice, and,shall set forth at length their reasons for so doing in their report. If it appears from the report of the examining physicians that the notice was not given, the judge may appoint a time and place for hearing the application and shall cause notice thereof to be served upon the alleged insane person in the manner a summons is required to be served, wjiich notice shall state that application has been made for an examination into his mental condition, and that such application will be heard at the time and place named in such notice, but if it shall be made to appear to the satisfaction of said judge by the report of said physicians or otherwise that such hearing and the service of such notice would be injurious or without advantage to such alleged insane person by reason of his mental condition, such service of notice may be omitted. If such notice be ordered and served, and a jury trial be not awarded, the judge may proceed at the time and place specified in such notice, or if such notice be not ordered then upon the report of the physicians, summarily to make such further examination as may seem to him to be necessary and proper, and if he be satisfied by all the evidence adduced that such person is insane, he may order him to be committed. . It is also provided that the judge.may, if he thinks the best interest of the alleged insane person re [12] quires it, appoint a guardian ad litem for such person at any stage of the proceedings. It will be observed that the original application does no more than call the attention of the county judge to* the fact that a person is believed to be insane; that application results in nothing more than the appointment of physicians to examine into the sanity of the suspected individual. If the physicians report the subject to be sane, the proceedings are ended. The suspected person is not arrested, he is not detained, his liberty is in no manner interfered with. Were it not for the fact that such a proceeding is regarded as a proper basis for an action for malicious prosecution in Manz v. Klippel, 158 Wis. 557, 149 N. W. 375, we should be disposed to give serious consideration to the question whether the mere application for a judicial inquiry into- the mental condition of an insane person affords a basis for an action for malicious prosecution. However, no doubt seemed to have been entertained as to the propriety of such an action in Manz v. Klippel, supra, and it may as well be regarded as the settled law of the state. It is true that to falsely question one’s sanity is no light or trifling matter. It may result in serious consequence and damage. Its natural tendency is to injure one’s social standing and credit and to bring humiliation to the one whose sanity is brought in question. Where this is done maliciously and without probable cause, it is a wrong for which the law should afford a remedy, and perhaps the action of malicious prosecution is as well adapted to afford that remedy as any other action known to the law. It has been held that malicious prosecution will lie under such circumstances in Kellogg v. Cochran, 87 Cal. 192, 25 Pac. 677; Lockenour v. Sides, 57 Ind. 360; and in Ulven v. Stormo, 43 S. Dak. 513, 180 N. W. 964, although in the latter case the insanity proceedings were instituted by the service of a warrant. See, also, 1 Cooley, Torts (3d ed.) 348. The physicians appointed in response to defendants’ appli [13] cation found that the plaintiff was insane. Should the ordinary layman be held to respond in damages for instituting an inquiry into one’s sanity because there was no reasonable ground to justify the belief of insanity, when two reputable physicians appointed by the court, constituting the agency provided by law for the ascertainment of one’s mental condition, determine that the suspect is in fact insane? There would seem to be an incongruity in such a rule. It would make the institution of such proceedings a hazardous undertaking and would tend to restrain the initiation of such proceedings on the part of the citizen which the welfare of society often demands should be instituted. If the advice of an attorney in the ordinary civil or criminal prosecution is conclusive evidence of the existence of reasonable cause, why should not the finding of physicians appointed in insanity proceedings to ascertain his mental condition, that the subject is insane, conclusively establish the existence of reasonable cause for the institution of the proceedings. Physicians so appointed are the agency created by law for the ascertainment of the mental condition of the alleged non compos. When they have found the subject insane, why should the existence of reasonable .cause to believe him insane be longer an open question ? The law regards it as a closed question so far as the future course of the proceedings is concerned. If the physicians find the subject sane, that ends the proceedings; if insane, there is a further inquiry. If this finding justifies a further judicial inquiry, why should it not also be held to have justified the filing of the petition, and why should those filing the petition be held responsible for the consequences of the further proceedings ? We hold that where physicians appointed by the court to inquire into the sanity of a suspected non compos find and report him to be insane, such finding constitutes conclusive evidence of the existence of reasonable grounds justifying the filing of the application and the institution of the in [14] quiry, unless the finding can be impeached for fraud or bad faith on the part of the physicians, or for collusion with the petitioners, or other conduct which deprives their conclusion of the character of a bona fide professional determination. We discover no evidence in the record of any fraud or bad faith on the part of the physicians, or of collusion between them and the petitioners, or any other conduct which should deprive their conclusion of the character, of a bona fide professional determination. It is true that they interviewed the neighbors, and it is possible that their conclusion was based in part upon the result of such interview. But the statute expressly enjoins them to satisfy themselves as to his mental condition by personal examination of such person and inquiry. Sub. (4), sec. 51.01, Stats. There is no evidence that they were misled by any of the defendants in this case, if they were misled at all, and we see no reason for denying to the report the conclusive effect which we hold should be ascribed to a bona fide professional determination upon the question of the suspected person’s mental condition. It follows that the existence of reasonable cause to believe the person insane justifying the defendants in filing the petition .appears as a matter of law, and that the action cannot be maintained. By the Court. — Judgment reversed, and cause remanded with instructions to dismiss plaintiff’s complaint.