Kellogg v. Cochran

Vanclief, C. The purpose of this action is to recover from the defendants damages for a malicious prosecution of the plaintiff as an insane person, and causing him to be unlawfully arrested and committed to the insane asylum at Stockton. A demurrer to the complaint was sustained by the court. The plaintiff declined to amend his complaint, and final judgment was thereupon rendered against him, dismissing his complaint, and for costs, from which he appeals on the judgment roll.

The grounds of demurrer are, that the complaint does not state facts sufficient to constitute a cause of action; and “that it appears, upon the face of the complaint, that the plaintiff has not the legal capacity to sue herein.”

The substance of those parts of the complaint relevant to these grounds of demurrer is as follows: That on January 28, 1889, the defendants willfully, maliciously, unlawfully, and without probable cause, “caused and procured the plaintiff to be arrested and committed to the state insane asylum at Stockton, state of California, on the charge of insanity; that under and by virtue of said commitment plaintiff -was unlawfully and against his will detained and imprisoned in said state insane [195]asylum, at Stockton, on said charge of insanity, for and during the period from said twenty-eighth day of January, 1889, up to and including the twentieth day of February, 1889, whereupon said plaintiff was then and there given leave of absence, and afterwards, to wit, April 13, 1889, was discharged; that plaintiff was not on said 28th of January, 1889, or ever,-at any other time before or since said day, dangerously insane, or insane at all, nor was he at any of said times so far disordered in his mind as to injure health, person, or property, all of which was known by said defendants before and at the time of said arrest and commitment.”

The learned counsel for respondents contend that the demurrer was properly sustained on the ground that the plaintiff had not legal capacity to sue, for the reasons: 1. That it appears, on the .face of the complaint, that the plaintiff had been adjudged to be insane on January 28, 1889, by the judge of a court of record pursuant to section 2217 of the Political Code, relating to commitments to the state insane asylums; and 2. That such adjudication is conclusive upon the plain tiff, not only that he was insane at the time he was so adjudged, but that he continued to be insane at the time this action was commenced, unless before that time he had been found to be of sound mind, and capable of taking care of himself and property, as authorized by section 1766 of the Code of Civil Procedure.