177 Wis. 8 | Wis. | 1922
Lead Opinion
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
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
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
By the Court. — Judgment reversed, and cause remanded with instructions to dismiss plaintiff’s complaint.
Dissenting Opinion
The following opinions were filed May 18, 1922:
(dissenting). By the majority decision in this case a new doctrine has been established in malicious prosecution cases. Under this doctrine, regardless of the animus of the instigators of the proceeding, if the medical appointees in their report find the unfortunate victim insane, then the injured party has no recourse whatever.
Under the law as it has universally heretofore been held, the advice of counsel is deemed a defense in cases of this
The object of the statute requiring the appointment of two physicians is manifest. Such object is intimated in the majority opinion of the court. The report of the physicians is merely advisory. Where the report is of such a nature that it appears therefrom that the person charged with insanity is either violent or dangerous, or is so deficient in his mentality as to be utterly unable to appreciate judicial proceedings, then the court, acting upon such advice, pursuant to the statute, can commit without even notice of the proceedings to the one charged. The theory of the statute is based upon the idea that where no judicial investigation is made, a situation must exist where such investigation would be a mere idle ceremony, and the commitment is not only intended for the benefit of the one charged but for his immediate relatives and for the safety of the community in general. Such a proceeding, under circumstances as above detailed, can only be justified upon the theory that the commitment is an exercise of the power not only for the benefit of the public but for the benefit of the person charged.
It would be a waste of time and effort to detail herein the aggravating circumstances involved in the acts of the defendants in an effort to secure plaintiff’s confinement in an insane asylum. The charge of insanity, while differing from that of a criminal charge, is nevertheless humiliating and degrading. Even a strong suspicion of insanity is liable to leave its marks not only upon the innocent victim but upon her descendants. It affects the possibility of entering the marital relation; it is an obstacle to obtaining life insurance; it prevents the obtaining of a position under the civil service rules and regulations; it has a tendency to exclude from social intercourse; and is so serious in every aspect that words can barely adequately describe it.
It is said in'the majority opinion that if the reports of the physicians are favorable the proceedings come to an end. Nevertheless such proceedings become matters of public record, and while under the opinion of the majority no liability can exist, nevertheless the stigma is almost as great as though the report be adverse to the one examined. On no question arising in the courts in civil and criminal cases do greater contradictions and disputes appear than in the testimony of experts on insanity. The good faith of the physicians may act as a shield to them, but it is impos
Concurrence Opinion
I concur, in the foregoing dissenting opinion by Mr. Justice Doerfler. To me there is a substantial distinction between the situation in cases like the present and one where the advice of the physicians is not sought or obtained until after the proceedings have been instituted, the machinery set in motion, and much, if not all, of the harm done, and that in the other class of cases for malicious prosecution where the advice of counsel is sought and given before the complaint is sworn to or the warrant issued.