On Motion for Rehearing
In response to the appellant’s motion for rehearing, we have reconsidered our original opinion.
Appellant calls our attention to the trial court’s additional finding of fact No. 23, which reads: “That Defendant Sheldon, prior to the issuance of said lunacy complaint by Defendant Dunham, had advised Defendant Burkhalter that the mental condition of R. E. Pendleton, Jr., was not such that he could be committed to a mental institution.”
We are unable to find in the record an order showing that the trial judge affirmatively made such finding. However, the transcript contains an order which provides that requested additional findings 1, 2, 3, 7, 12, 24, 27 (and others) are denied. The order does not expressly say that any additional findings are made, but since all-parties to this appeal have treated the matter as if those requested findings not spe*730cifically refused were made, we will so regard them.
The support in the evidence for such finding will not be discussed here, because no assignment or cross-assignment of error was made as to it. The finding is vital in our consideration of appellant’s second and fourth points of error. In view of additional finding No. 23 and of Dr. Burk-halter’s admission that it was he who had defendant Dunham swear out the lunacy complaint, we re-examine the evidence as to malice on his part and as to probable cause.
In his testimony regarding Dr. Pendle-ton’s mental health, Dr. Burkhalter pointed out that Dr. Sheldon was a psychiatrist and twice observed that he (Burkhalter) was not. Some of his testimony concerning his discussion with Dr. Sheldon about Dr. Pendleton before the September 30 date of the filing of the lunacy complaint is noteworthy:
“Q Did you as a physician and your qualifying training and education, have^ — -not saying definitely in the sense of a psychiatrist, but as a medical practitioner, did you have an opinion?
“A No, sir.
“Q Never did have any opinion whether he was of sound or unsound mind?
“A If I did I was confused.
“Q You did have but you later found out you were wrong?
“A I found out I was not qualified to make a decision.
“Q What confused you?
“A I am not a psychiatrist and some of the actions were abnormal in my opinion.
“Q That was back when you had the discussion with Dr. Shelion?
“A Yes, sir.
“Q What was Dr. Shelion’s opinion, if any?
It is my understanding that Dr. Shelion thought there was something wrong with Dr. Pendleton. >
Did he so' state to you ? a
Yes, sir. <¡
He stated Dr. Pendleton was of unsound mind? a
Yes, sir. <¡
In June or July? a
Sometime before the September meeting. c
Of September the 20th ? ©
The board of directors— >
September the 20th, 1966? o
Yes. >
He had given you his opinion as a psychiatrist Dr. Pendleton was of unsound mind ? io
Yes, sir. c
Did he say he should be committed? a
No, sir. <d
Did he suggest commitment? a
No, sir. <i
If he was of unsound mind was there any explanation for that? a
A You don’t commit everybody you might think is of unsound mind.”
We find no testimony by Dr. Burkhalter indicating that at the time (or just before) the lunacy complaint was filed he had been advised by anyone or that he personally held the opinion that Dr. Pendleton was “mentally ill and because of his mental illness * * * likely to cause injury to himself or others if not immediately restrained,” the standard provided by Article 5547-27, Vernon’s Ann.Civ.St, for determination of whether a lunacy war*731rant should be issued to restrain one who is mentally ill. Nor did he refer to any specific conduct on the part of Dr. Pendleton which might give rise to such an opinion or belief on his part.
There is evidence in the record that Dr. Burkhalter was angry at Dr. Pendleton; that he wanted Dr. Pendleton out of the hospital, that the doctors on the hospital staff other than Drs. Burkhalter and Sheldon did not consider Dr. Pendleton to have been of unsound mind; that on September 20 Dr. Burkhalter voted to remove Dr. Pendleton from the board of directors of the corporations and participated in the medical staff’s suspension of Dr. Pendleton from the staff; that on September 21 Dr. Burkhalter gave Dr. Pendleton a notice of eviction from his offices in the hospital, and that Dr. Burkhalter had the lunacy complaint filed on the same day that a temporary restraining order was issued to prevent him and some of the other defendants from interfering with Dr. Pendleton’s access to and use of the hospital, clinic and facilities.
We hold that the great weight and preponderance of the evidence indicates that Dr. Burkhalter lacked a proper motive in causing the lunacy complaint to be filed. His wrongful motive, coupled with such wrongful act, wilfully done to the injury of Dr. Pendleton, would constitute legal malice. We also hold that the evidence adduced showed a lack of probable cause on his part, i. e., the lack of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within his knowledge, that at the time in question Dr. Pendleton’s mental health was substantially impaired and because of this he was likely to injure himself or others if not immediately restrained. J. C. Penney Co. v. Gilford, 422 S.W.2d 25 (1st Houston Civ.App.1967, writ ref., n. r. e.); Suhre v. ICott, 193 S.W. 417 (San Antonio Civ.App.1917, no writ); Reed v. Lindley, 240 S.W. 348 (Ft. Worth Civ.App. 1922, no writ).
We sustain appellant’s second and fourth points of error as to defendant Burkhalter. We overrule her first and third points, Our rulings as to appellant’s points 5. through 9. remain unchanged.
Appellant has urged us to. reconsider our rulings with respect to her tenth through fourteenth points. We will not do so because our rulings on rehearing as already indicated make it necessary for us to reverse this cause and remand it for a new trial.
The motion for rehearing is granted. The judgment is reversed and remanded.