Yelk v. Seefeldt

• Decision Date: 06 June 1967
• Citation: 35 Wis.2d 271,151 N.W.2d 4,30 A.L.R.3d 446
• Parties: , 30 A.L.R.3d 446 Gladys YELK, Respondent, v. William H. SEEFELDT et al., Appellants.
• Court: Wisconsin Supreme Court

Page 4

151 N.W.2d 4

35 Wis.2d 271, 30 A.L.R.3d 446

Gladys YELK, Respondent, v. William H. SEEFELDT et al., Appellants.

Supreme Court of Wisconsin.

June 6, 1967.

Roberts, Boardman, Suhr & Curry, Madison, for appellants.

Hall & Griffith, Madison, for respondent.

HANSEN, Justice.

The defendants contend that there is no credible evidence to support the jury's finding that the defendants, in signing the application for a judicial inquiry as to the mental condition of the plaintiff acted 1) without probable cause 2) with malice.

There are six essential elements which must be proved in a successful action for malicious prosecution. Two of them are as follows:

1. There must have been want of probable cause for the institution of the former proceeding.

2. There must have been malice in instituting the former proceeding. Elmer v. Chicago & N.W.R. Co. (1950), 257 Wis. 228, 43 N.W.2d 244.

The plaintiff in an action for malicious prosecution has the burden of proving all of the elements.

'The burden of proof is upon the plaintiff to establish all six elements; and, if he fails with respect to any one of them, the defendant prevails. There is a strong reason of public policy for thus making it rather onerous for a person to successfully maintain an action for malicious prosecution. * * *'

Gladfelter v. Doemel (1958), 2 Wis.2d 635, 640, 87 N.W.2d 490, 493.

Because our holding with respect to the issue of malice is dispositive of the appeal we find it unnecessary to pass on the question of sufficiency of the evidence to support the finding of want of probable cause.

When a jury verdict is attacked, we inquire only whether there is any credible evidence that, under any reasonable view supports the verdict. Lemke v. Guse (1965), 26 Wis.2d 80, 131 N.W.2d 893. Conversely, a jury verdict will be overturned when there is no credible evidence to support the verdict. Smee v. Checker Cab Co. (1957), 1 Wis.2d 202, 83 N.W.2d 492. In order to consider this case in its proper perspective, it is important to look to the prayer for relief contained in the application signed by the two defendants and the plaintiff's husband. It is contained in a form provided by the Wisconsin State Department of Public Welfare which is used throughout the State of Wisconsin and reads as follows:

'WHEREFORE, your applicants pray for a judicial inquiry to determine the mental condition of the patient and for such orders of temporary and permanent nature as may be necessary.'

The application in this particular case contained an allegation that the plaintiff's condition was such that safety required an immediate order for temporary detention. It contains a further averment that the applicants believed the patient to be mentally ill 'because of continual streaks of violence, accuses husband of infidelity, threatened to kill husband and son.'

It is well established that the institution of a proceeding to inquire into the mental health of a person is grounds for a suit for malicious prosecution. Manz v. Klippel (1914), 158 Wis. 557, 149 N.W.2d 375. However, this court stated in Bode v. Schmoldt (1933), 177 Wis. 8, p. 12, 187 N.W. 648, p. 650, 187 N.W. 1024:

'Were it not for the fact that such a proceeding is regarded as a proper basis for an action for malicious prosecution in Manz v. Klippel (supra), we should be disposed to give serious consideration to the question whether the mere application for a judicial inquiry into the mental condition of an insane person affords a basis for an action for malicious prosecution. However, no doubt seemed to have been entertained as to the propriety of such an action in Manz v. Klippel (supra), and it may as well be regarded as the settled law of the state. * * *'

A judicial inquiry as to the mental condition of one alleged to be mentally ill is controlled and governed by the provisions of Chapter 51, Stats. It is essentially in the nature of an ex parte proceeding and once the application is executed, the direction of the proceedings is almost entirely within the province and control of the presiding judge operating within the direction and provision of the statute. There is little, if anything, the signators of the application can do once they have executed the application.

In order to establish malice on the part of the defendants in signing the application to commence a judicial inquiry to determine the mental condition of the patient, it was the plaintiff's burden to prove that they acted from motives of ill will or that their primary purpose was other than the social one of having a determination of the state of the plaintiff's mental health. Gladfelter v. Doemel, supra. While it is a fact that a willful and wanton disregard for the fact may be the basis for malice, such wanton and willful conduct must be of such a nature and character as to evince a hostile or vindictive motive. A jury cannot base a finding of malice upon speculation or conjecture. In order to sustain such a finding, there must be some positive evidence in the record from which a jury may reasonably infer that the defendants instituted the proceedings for an improper motive or purpose.

We search the record to determine if there is any credible evidence from which the jury could determine that the defendants were in any way activated by malice in signing the application for the judicial inquiry.

They were acting in their official capacity as law enforcement officers. They were ordered to the home of the plaintiff at 11:00 p.m. Both the plaintiff and her husband were practically unknown to them. They were in no way interlopers but were acting in their official capacity. Sec. 51.01, Stats., specifically identifies them as persons having a right to sign such an application. While we do not hold that this section...