This is an action to recover damages for malicious prosecution of a lunacy proceeding.
A demurrer was filed to the complaint on two grounds; first, that it did not state facts sufficient to constitute a cause of action, and, second, th^t the action was barred by C. L., sec. 4055, subds. 4 and 5. The statutes of limitation were also pleaded in the answer. The cause was tried to a jury, and resulted in a verdict and judgment for plaintiff. This appeal is from the judgment.
The record discloses that a hearing was had before the probate judge on April 21, 1911, and on the same day respondent was discharged. This action was commenced on August 5, 1913. Appellants contend that the action is barred by subds. 4 and 5, C. L., sec. 4055, which limit the time within which certain actions may be brought to two years and which are as follows:
*378“4. An action to recover damages for an injury to the person; or for the death of one caused by the wrongful act or neglect of another. , •
“5. An action for libel, slander, assault, battery, false imprisonment or seduction. ’ ’
It is urged that the action is for an injury to the person, or that it is so closely akin to an action for libel or slander as to make the statute with reference thereto applicable.
While it may be said that an action for malicious prosecution bears a strong resemblance to an action for libel (Briggs v. Garrett, 111 Pa. St. 404, 56 Am. Rep. 274, at 281, 2 Atl. 513; Chapman v. Calder, 14 Pa. St. 365; 26 Cyc. 7 and 8), they are not identical.
The cases which have been cited in an endeavor to show that a malicious prosecution is an injury to the person, construe statutes which contain language not found in ours, and are, consequently, of little assistance in reaching a correct interpretation of the subdivision relied on.
C. L., see. 4055, subd. 4, fixing two years as the period of limitation, prior to amendment, contained the following provision: “An action to recover damages for the death of one caused by the wrongful act of another. ’ ’ Subd. 4 was amended by Sess. Laws 1903, p. 56, so as to contain the provision herein first quoted.
Construing the statute as amended in the light of the law as it was prior to amendment, it is clear that this subdivision was originally designed to limit the time of commencement of actions for physical injuries resulting in death, and that the amendment was made to extend the statute to include and to limit actions based upon like-injuries which did not result in death. It follows that the present action is not barred by either subd. 4 or 5 of sec. 4055, supra.
The contention with respect to the general demurrer is that respondent has no cause of action against either of the appellants, for the reason that he was not charged with, nor prosecuted for, any crime, that no civil action was commenced or prosecuted against him, and that this action will only lie where there has been a malicious prosecution of a *379criminal or civil action. While there are authorities which go the extent of so holding, the modern and better rule is to the effect that an action for malicious prosecution will lie against one who has maliciously, and without probable cause, instituted lunacy proceedings against another. (Lockenour v. Sides, 57 Ind. 360, 26 Am. Rep. 58; Kellogg v. Cochran, 87 Cal. 192, 25 Pac. 677, 12 L. R. A. 104; Griswold v. Griswold, 143 Cal. 617, 77 Pac. 672; 26 Cyc. 14.)
Appellants contend that the court erred in submitting the question of probable cause to the jury, but as the instructions are not before us, the record presents no such question for review.
Appellants specify the insufficiency of the evidence to support the verdict and judgment. In this connection it may be said there are decisions to the effect that the discharge of the defendant on preliminary examination is prima facie evidence of want of probable cause. Without discussing the soundness of that rule, it may be said it has no application to this case. The hearing had before the probate judge was a final trial, not a preliminary examination, and even these authorities do not go so far as to hold that a verdict or judgment of acquittal on the merits constitutes proof of want of probable cause for the commencement of the action. (26 Cyc. 40c.)
In a trial on the merits in a civil or criminal case, or in a lunacy proceeding, the question of probable cause is not passed on by the court, judge or jury, nor is it the criterion of the decision or verdict. The decision is on the merits, and if the defendant wins, it simply means that the plaintiff has not proved his case by the preponderance of the evidence or beyond a reasonable doubt. Therefore, the verdict or decision has no logical bearing on the question of probable cause and is not even admissible on that issue. It is admissible simply for the purpose of proving final and favorable termination of the action, which is another and separate question.
We find no proof of want of probable cause in the evidence submitted by respondent, and conclude that the motion for a nonsuit should have been sustained. Since appellants did not rest upon the motion, but introduced evidence, it is *380waived. The question, .then arises, Does the evidence introduced by them supply the weakness in respondent’s case and show want of probable cause? Our answer to this is, No. The evidence introduced by appellants certainly does not tend to show want of probable cause. On the other hand, it is shown that, prior to the making of the accusation, two reputable physicians, who had attended respondent and thus ‘had recent opportunity to examine him and to judge of his mental condition, told one of appellants, and he told the other, that respondent was insane. It is also shown that on an occasion when respondent was before the Idaho state medical board, an applicant for a license, to practice medicine and surgery, his conduct was such as to excite the suspicion of those who observed it, including one of appellants, as to his mental balance; also that shortly prior to his arrest on the insanity charge it came to the knowledge of appellants that he had written prescriptions which are referred to in the record as “freakish,” one of which was for strychnine in doses which, had one of them been taken by the patient for whom it was-intended, would have proved fatal; another was for an eyewash which, had it been applied, would have ruined or destroyed the eyesight. On the lunacy hearing the commission of physicians appointed to examine him reported that he was suffering from paranoia, but recommended that he be not restrained. We conclude that respondent did .not sustain the burden incumbent upon him, and that no court or jury could reasonably find from the evidence introduced that, in making the lunacy accusation against him, appellants acted without probable cause.
It is true, there is evidence which would justify a finding of malice, but it is too well established to admit of argument that want of probable cause cannot be inferred from malice. It has been said in some cases that the fact' a criminal case is prosecuted from some private or personal motive, other than a public motive, is of itself evidence of want of probable cause. This is not a logical statement. Probable cause depends upon what the prosecuting witness knew, or ought, as a reasonably prudent man, to have known, when he instituted *381the proceeding. If he had no sufficient information to justify a reasonably prudent man in believing the defendant was guilty, then the inference may be drawn he was acting from improper motive. However, improper motive is proof of malice, but not, of itself, proof of want of probable cause. Moreover, an examination of the cases just above referred to discloses that in almost every instance the evidence showed facts within the knowledge of the prosecuting witness which proved that he acted without probable cause.
Since appellants did not ask for a directed verdict at the close of the evidence, it is not incumbent upon this court to finally dispose of the case on this appeal. We conclude the evidence is insufficient to establish want of probable cause.
For the instruction of the trial court upon a new trial, we express the opinion that the certificates of admission to practice medicine in other states, offered by respondent and admitted by the trial court over appellants’ objection, are not admissible in the absence of evidence tending to show his intention to engage in the practice there. They do not prove a right of the respondent to practice medicine in this state. They are not legitimate evidence of damage to respondent’s business ; we do not consider that they are any evidence of damage to his reputation or his feelings. While not legally relevant or material, they are exceedingly prejudicial. They serve to inject into the case a question of whether the refusal of the medical board to admit the respondent to practice in this state was right or wrong and prejudice appellants, inasmuch as one of them was a member of the medical board and also filed a complaint against respondent for practicing medicine without a license, acting under the orders of the medical board.
The judgment of the trial court is reversed and the case remanded, with instructions to grant a new trial. Costs awarded to appellants.
Morgan, C. J., concurs.