1. The fact that plaintiff was in form given no option to submit to a reduction of the verdict or take a new trial is something that he might complain of, but it is not apparent that the defendants have any cause of complaint. ITad the court’s attention been directed to the omission, it would no doubt have been supplied. We find nothing to indicate that the court did not, fix the recovery of punitory damages at the lowest sum which it was thought a jury in a subsequent trial would be likely to award.
2. The discharge in the county court was prima facie evidence of want of probable cause. Bigelow v. Sickles, 80 Wis. 98, 49 N. W. 106; Eggett v. Allen, 119 Wis. 625, 96 N. W. 803. There wTas other evidence offered by plaintiff before he rested his case that would justify the jury in finding want of probable cause, and there was ample evidence to warrant such a finding at the close of the testimony.
3. We entertain no doubt that the discharge in the county court was a sufficient basis on which to predicate an action for malicious prosecution where there was a want of probable *561cause for the institution of the proceeding. Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Eggett v. Allen, supra; Strehlow v. Pettit, 96 Wis. 22, 71 N. W. 102; Bigelow v. Sickles, supra; 26 Cyc. 57, 58, 59, and cases cited.
4.- 27o good reason is apparent why advice of counsel would not be a defense if honestly given on a full and fair statement of the facts within the knowledge of a party about to sign such a petition as was here signed. -27o authority is cited to support the instruction given, and the fact that a lawyer is not ordinarily an insanity expert is no reason for creating an exception to the general rule in this class of cases. This error was harmless, however, for the reason that the facts testified to were wholly insufficient to warrant a jury in finding that there was any justification. When the jury was told that the visit by Mrs. Bursaiu with plaintiff’s wife to the office of the attorney for the latter might be considered as bearing on the good faith of the defendants, they were given all the benefit from this visit that they were entitled to.
In the final paragraph of the quoted instructions the court defined “malice.” In the last sentence it is said: “One may be actuated by a good purpose or design, yet if he wilfully inflicts wrong on another which is not warranted by law, his act is malicious.” This instruction may have been misleading. If the defendants acted on an honest belief, and there existed reasonable grounds for it, they would be justified in making the petition. Fagnan v. Knox, 66 N. Y. 525; Whitney v. New York C. Ins. Asso. 27 App. Div. 320, 50 N. Y. Supp. 227; Jacks v. Stimpson, 13 Ill. 701. The jury might have understood that if it developed that wrong was wilfully done the plaintiff by having his sanity inquired into, the defendants were chargeable with malice although they acted in good faith and had reasonable grounds for their belief.
Our own decisions hold (1) that malice may be inferred from want of probable cause; (2) that it is established by *562showing a wicked or ulterior purpose or design; and (3) that it may be established by showing that the wrongful act complained of was done wantonly or recklessly or under circumstances of aggravation or insult. Eggett v. Allen, 119 Wis. 625, 634, 96 N. W. 803; Thomas v. Williams, 139 Wis. 467, 121 N. W. 148. The idea that an act was done maliciously would seem to be incompatible with the assumption that it was. done in good faith or even for a good purpose. The trend of our decisions is to the effect that if there is good faith in initiating a proceeding such as is here complained of, no action for malicious prosecution will lie. Inferentially at least this is held in Spear v. Hiles, 67 Wis. 350, 30 N. W. 506, and in Messman v. Ihlenfeldt, 89 Wis. 585, 62 N. W. 522. But in order that there should be good faith there must be reasonable ground for believing that the charge made is true, because malice may be inferred from want of probable cause.
While we think the instruction complained of was not strictly accurate, we do not think it was prejudicial. There was little justification or excuse for instituting the insanity inquiry. Mrs. Bwrsaw seems to have been actuated by a desire to aid the plaintiff’s wife in some way in a divorce action pending between her and her husband. Klippel apparently signed the petition because Mrs. Bursaw and Mrs. Manz asked him to and because some one told him it was a formal matter. AAAhile the elements of.ill will or of a wicked purpose or of bad motive may have been and probably were absent, at least as far as Klippel was concerned, yet it seems pretty clear from the evidence that they acted recklessly and wantonly in the matter and that the jury could hardly reach any other conclusion on the evidence. Further on in the charge the1 court .correctly instructed the jury as follows:
“If you find from the evidence of greater weight that the-defendants in instituting the proceedings in the county court to have plaintiff examined as to his sanity were actuated by feelings of ill will or hostility to the plaintiff, that they began these proceedings not for the purpose of promoting some-*563.public end, but for tbe purpose of injury and banning tbe plaintiff, or if you find that tbe defendants acted in tbe matter recklessly and with wanton disregard of plaintiff’s rights, ■then they acted witb malice-.
“But if tbe credible evidence convinces you that tbe de- ■ fendants acted witb an honest belief of plaintiff’s mental derangement and without purpose to inflict wrongful injury on plaintiff, then they acted without malice.”
Under tbe Civil Court Act, unless there was not only error but tbe error was manifestly prejudicial, tbe judgment should not be disturbed. We have reached tbe conclusion that in view of tbe character of tbe evidence and tbe subsequent instruction, it should not be held that there was manifest prejudicial error in giving tbe inapt instruction complained of.
Neither can it be said that this error affected tbe assessment of punitory damages. Tbe jury was instructed that no such damages should be assessed unless “actual malice and want of probable cause" were shown. This instruction was certainly as favorable to tbe defendants as they bad any right to expect, and more favorable than some of tbe decisions of this court would warrant. See Eggett v. Allen, 119 Wis. 625, 634, 96 N. W. 803. It would have been better bad tbe court clearly defined tbe term “actual malice,” but no such definition was requested.
By the Court.- — Order reversed, and cause remanded with directions to affirm tbe judgment of tbe civil court.