Concurring in Part and Dissenting in Part.— Some time ago, this case was assigned to me for the purpose *382of writing an opinion. I prepared an opinion, setting forth my views on the whole case. Inasmuch as that portion of my original draft which related to the question of the statute of limitations, and the absence of the court’s instructions from the record, has been embodied in the majority opinion,’ I concur to that extent. As to the remainder of the majority opinion, I dissent.
I am clearly of the opinion that there is sufficient evidence in this record to sustain the jury’s finding that the appellants instituted the lunacy proceeding without probable cause. While the rule is well settled that the plaintiff has the burden of establishing want of probable cause, since want of probable cause involves a negative, slight proof thereof is all that the law requires (18 R. C. L. 52, sec. 32; Vinal v. Core, 18 W. Va. 1, at 41; Chapman v. Dodd, 10 Minn. 350 (Gil. 277, at 291); Williams v. Van Meter, 8 Mo. 339, 41 Am. Dec. 644, at 647; Kolka v. Jones, 6 N. D. 461, 66 Am. St. 615, at 626, 71 N. W. 558; Grant v. Deuel, 3 Rob. (La.) 17, 38 Am. Dec. 228; 26 Cyc. 85, note 21), or, as stated by the supreme court of Montana:
“When the proof tends to show the absence of the former (probable cause), a prima facie ease is made for the jury. The burden then rests upon the defendant to rebut this prima fade case, and this he must do by any evidence tending to show the existence of probable cause and the want of malice on Ms part.” (Martin v. Corscadden, 34 Mont. 308, 319, 86 Pac. 33, at 36.)
Interpreting this rule, the supreme court of the United States has said that it requires the plaintiff to prove this part of the ease by only such circumstances as are affirmatively within the plaintiff’s control and that he may be fairly expected to be able to produce. ] Discussing the point in a recent ease, that court said:
“While it is true that the want of probable cause is required to be shown by the plaintiff, and the burden of proof is upon her in this respect, such proof must necessarily be of a negative character, and concerning facts which are principally within the knowledge of the defendant. The motives *383and circumstances which induced him to enter upon the prosecution are best known to himself. This being true; the plaintiff could hardly be expected to furnish full proof upon the matter. She is only required to adduce such testimony as, in the absence of proof by the defendant to the contrary, would afford grounds for presuming that the allegation in this respect is true. 1 Greenl. Ev., sec. 78. In other words, the plaintiff was only obliged to adduce such proof, by circumstances or otherwise, as are affirmatively within her control, and which she might fairly be expected to be able to produce. As Mr. Justice Clifford put it, in Wheeler v. Nesbitt, supra, the plaintiff must prove this part of the case ‘ affirmatively, by circumstances or otherwise, as he may be able.’ ” Brown v. Selfridge, 224 U. S. 189, 192, 32 Sup. Ct. 444, 446, 56 L. ed. 727, at 729, see, also, Rose’s U. S. Notes.
Thus it has been held that proof tending to show that the prosecution was to accomplish some collateral purpose is sufficient to establish a prima facie want of probable cause and to impose on the defendant in an action for malicious prosecution the burden of showing that he had probable cause. (18 R. C. L. 53, sec. 34; Prough v. Entriken, 11 Pa. St. 81; Schmidt v. Weidman, 63 Pa. St. 173; Wenger v. Phillips, 195 Pa. St. 214, 78 Am. St. 810, 45 Atl. 927; MacDonald v. Schroeder, 214 Pa. St. 411, 6 Ann. Cas. 506, 63 Atl. 1024, 6 L. R. A., N. S., 701.)
In the latter case, the court used the following language: “Nothing is better settled by our cases than that where one commences a criminal prosecution for the purpose of compelling his debtor to pay a just debt, it is prima facie evidence of want of probable cause and of malice and shifts the burden of showing it was not so on the defendant.”
No reason is apparent to my mind for limiting the rule to cases arising upon debt. The principle upon which the rule is based, and the reason for holding that proof that the prosecution was instituted for the purpose of collecting a debt is sufficient to make out a prima facie want of probable cause is that it shows a collateral purpose. In other words, if the proof tends to show in any case that the prosecutor was seeking to *384accomplish some collateral purpose, a prima facie want of probable cause is established. The rule is, doubtless, based upon the psychological truth that a person seeking to accomplish some collateral or ulterior purpose will act upon much less convincing evidence than one whose only purpose is to promote the public good. Hence, there may be much evidence which tends to show both malice and want of probable, cause, and the cases which hold that probable cause cannot be inferred from malice do not go to the extent of holding that a want of probable cause may not be inferred from the same evidence from which malice is inferred. It is a matter of frequent occurrence in the trial of causes that some particular piece of evidence may be admissible for more than one purpose. Evidence that a prosecution was to accomplish some collateral purpose is one instance thereof, for the attempt to use the machinery provided for the enforcement of the law to accomplish and cloak some private collateral or ulterior purpose, while evidence of express malice is also some evidence that the prosecutor is acting without probable cause.
The evidence of express malice in this record is overwhelming, and much of this evidence expressly shows that the lunacy proceeding was instituted to accomplish a private collateral and ulterior purpose. The statements of appellants that they would “get him yet,” referring to respondent; that they wanted to get him, because he was interfering with their business ; the institution of a criminal proceeding against respondent shortly before the lunacy proceeding and at a time when all of the facts, according to appellants’ own testimony, upon which they pretended to base their belief that respondent was insane, were in their possession; the statement of appellant J. C. Woodward, in reply to witness Hinkston’s question' inquiring what he had against Dr. Barton, that “he was turning the poorer classes of people against him”; the evidence touching various medical examinations all tend to show that the appellants were seeking not only to put respondent out of any competition with them, but to put him out of business entirely, and to put him in a situation where it would forever be impossible for him to become admitted to the practice of *385medicine in this state. To say that this evidence is evidence of malice is no answer to the argument that it also shows affirmatively, if not conclusively, a private, collateral and ulterior purpose on the part of appellants. It is, therefore, sufficient to establish a prima facie showing of want of probable cause. Furthermore, it is clearly apparent from these statements made by appellants concerning respondent not only that they had no probable cause to believe him insane, but did not, in fact, entertain any such belief.
The fact that some of this evidence was adduced while appellants were putting in their defense does not change the applicability of the rule. The motion for nonsuit at the close of respondent’s case having been denied, and appellants having elected to put in their defense, the jury was not only entitled, but was in duty bound to consider all of the evidence in the case.
Since there is evidence sufficient in law to establish a prima facie showing of want of probable cause, the fact that there is other evidence tending to show probable cause is not material. The jury may have disbelieved and disregarded all of the evidence introduced to show probable cause. Inasmuch as the evidence is conflicting, the fact that there is substantial evidence to sustain the verdict is all that the law requires.
In the majority opinion, it is stated that two physicians, who are alleged to have examined respondent, informed one of the appellants, who informed the other, that responded! was insane. It does not appear from the evidence that either of these physicians gave the appellants any information as to the facts and circumstances upon which they based their belief as to respondent’s insanity. ' It was the duty of appellants, before making the charge of insanity, to have made an investigation such as prudent and cautious men would have made under like circumstances. They were themselves physicians, and saw respondent in the town of Payette almost daily for a year after Dr. Phy, one of the above-mentioned physicians, is alleged to have told one of them that the respondent was insane. They were equally competent to judge as to his insanity, but the record discloses that they made *386no effort to investigate the facts with a view of ascertaining the truth of the claim made by their informers that respondent was insane. The commission which was called to examine respondent, upon the hearing involving the question of his sanity, was composed of three physicians, who reported to the court that respondent was slightly paranoiac. All of the physicians reached the conclusion that the charge in the complaint was not true, and the court found that the charge was not sustained.
The evidence concerning respondent’s conduct before the Idaho state medical board establishes nothing more than that he was of a highly nervous temperament.
Touching the matter of the two written prescriptions,, referred to in the majority opinion as “freakish, ” the one which was for strychnine was satisfactorily explained, and the most that could be said of it is that it was a mistake, or an act of carelessness, which was immediately corrected by respondent when his attention was called to it. The one for the eye-wash was never used, and the record is very meager with reference to it. Suffice it to say that .these were the only prescriptions written by respondent, so far as the record discloses, that were questioned. It does not seem to me that this proof, offered on the part of appellants, is sufficient to establish probable cause, when considered in the light of the entire record.
Certificates authorizing the respondent to practice medicine in certain other states, and a diploma issued to respondent by the Jefferson Polytechnic Hospital of Chicago, were introduced in evidence, over appellant’s objection, and their admission is assigned as error, the theory of appellants being that the only purpose in offering this evidence was to give the jury the false impression that respondent was authorized to practice medicine, and to prejudice the jury. The objection is not well taken.
As the case stands before us, it presents a situation in which appellants wantonly, maliciously and without probable cause, preferred a charge of lunacy against respondent. The complaint alleges injury to respondent’s credit, reputation and avocation as a physician and surgeon, injury to his good name, *387fame and reputation generally, and to Ms practice of optometry, that he was brought into public scandal, infamy and disgrace, and suffered great anxiety and pain of body and mind, by reason of which his health was greatly impaired. The exhibits are the concrete evidence of years of study and preparation for his chosen profession. Certificates and diplomas of this character have a dir'eet tendency to add to the standing of their possessor wherever he may-be. It would be difficult to imagine a tort more calculated to inflict mental anguish and humiliation than a baseless charge of this character, the results of which, even if unsuccessful, as in this case, would naturally be to wipe out, in some measure, the results of years of toil, study and preparation.
While respondent was not licensed to practice medicine in the state of Idaho, these certificates neither proved nor tended to prove, nor were they offered for the purpose of proving, that he was so licensed. He is not seeking to recover damages solely to his business, but damages generally for injury to Ms standing, reputation and his feelings. The presumption is that the court instructed the jury as to the purpose for which these certificates were admitted.
The injury and the damage caused by this charge, for which respondent is entitled to recover, is not confined solely to any damages he may sustain within the -state of Idaho, but is limited only by the whole extent of the injury and damage caused. Should respondent desire at any time to return to either of the states wherein he has been admitted to practice, and pursue there his profession, or should he be called there, which is neither unlikely nor unusual, a charge of this character could not help but cause serious and far-reaching impairment of his professional standing.
For the foregoing reasons, it is my opinion that the judgment should be affirmed.