The following opinions were filed May 18, 1922:
Doerfler, J.(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 *15kind, provided a full and fair statement of the,subject matter is made to him and if the, party in good faith acts upon such advice. The reason for such rule is apparent. An attorney at law is a quasi-judicial officer of the court, with a primary obligation to aid in the administration of justice. An investigation by such an officer is in the nature of a judicial investigation, and the conclusions arrived at by him have an effect similar to the final adjudication of a court having jurisdiction in the matter. The reliance in law placed upon an attorney in a matter of this kind is a proper tribute .to the dignity and importance of the office of an attorney. This is the basic view, which has resulted in constituting, in a proper case, the advice of counsel as a defense in malicious prosecution cases. This is an avenue that any one desiring to instigate an investigation like the one involved in this case can always readily resort to, and he can thereby gain immunity if,he acts honestly and in good faith.
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.
*16In the instant case, under proper instructions, the jury .found by its verdict all of the issues in the case in plaintiff’s favor, also malice, lack of probable cause, and failure to make a full and complete statement in good faith to counsel. Even the finding of an examining magistrate in a criminal case of probable cause does not constitute a conclusive presumption of the existence of -such probable cause. And such finding does not absolutely shield the accuser from the charge of malicious prosecution. At most the report of the physicians is merely evidentiary, and the same does not partake of the dignity either of a judicial inquiry or of a finding of probable cause.
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*17sible for the writer to see how it can shield one who wrongfully instigates the proceedings from malice, having in view as its end the confinement of a human being in an insane asylum. The most that can be made of the reports of physicians is to establish presumptive good faith, which presumption ought to be rebuttable.