Bode v. Schmoldt

• Decision Date: 18 May 1922
• Citation: 187 N.W. 1024,177 Wis. 8
• Parties: BODE v. SCHMOLDT ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 8

187 N.W. 1024

BODE

v.SCHMOLDT ET AL.

Supreme Court of Wisconsin.

May 18, 1922.

Dissenting opinion.

For majority opinion, see 187 N. W. 648.

*1024DOERFLER, 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 kind, 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...