
140 S.E.2d 398 (1965)
263 N.C. 724
Mary P. FOWLE
v.
Dr. Willis H. FOWLE, III.
No. 602.
Supreme Court of North Carolina.
February 24, 1965.
*400 Ottway Burton, Asheboro, for plaintiff appellant.
L. T. Hammond, Sr., L. T. Hammond, Jr., Ferree, Anderson & Ogburn, Asheboro, for defendant appellee.
DENNY, Chief Justice.
This action was originally brought against Dr. Willis H. Fowle, III, Dr. E. D. Shackelford and Dr. T. R. Cleek, to recover damages for the detention of plaintiff in a state hospital for mentally disordered persons, arising out of a judicial proceeding under Article 3, Chapter 122, General Statutes of North Carolina. A joint written demurrer filed by defendants Drs. Shackelford and Cleek was sustained and the plaintiff appealed. This Court, at the Fall Term 1961, in an opinion reported in 255 N.C. 720, 122 S.E.2d 722, sustained the demurrer on authority of Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 and Jarman v. Offutt, 239 N.C. 468, 80 S.E. 2d 248.
An examination of the complaint herein leaves one in doubt as to whether the plaintiff is seeking recovery on an action for false imprisonment, malicious prosecution, or abuse of process.
In the case of Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 162 A.L.R. 793, this Court said: "At common law there were a number of related causes of action devised to afford a remedy against the wrongful invasion of the liberty of an individual through the processes of the courts.
"A cause of action for false arrest or false imprisonment is based upon the deprivation of one's liberty without legal process. It may arise when the arrest or detention is without warrant * * *.
"To sustain an action for malicious prosecution the plaintiff must show malice, want of probable cause, and the favorable termination of the former proceeding.
*401 "One who uses legal process to compel a person to do some collateral act not within the scope of the process or for the purpose of oppression or annoyance is liable in damages in a common law action for abuse of process.
"So then, while false imprisonment is the arrest and imprisonment without legal process and malicious prosecution is the prosecution with malice and without probable cause, abuse of process is the misuse of legal process for an ulterior purpose. It consists in the malicious misuse or misapplication of that process after issuance to accomplish some purpose not warranted or commanded by the writ. It is the malicious perversion of a legally issued process whereby a result not lawfully or properly obtainable under it is attempted to be secured." (Citations omitted. Emphasis added, with the exception of that in last paragraph.)
There is no evidence of false imprisonment. The plaintiff was committed pursuant to a duly issued order of the Clerk of the Superior Court of Randolph County as authorized by statute. Moreover, the plaintiff's evidence clearly establishes the fact that the proceeding which she alleges was maliciously instituted, was used only for the purpose for which it was intended, and the result accomplished was warranted and commanded by the writ. Therefore, the evidence is insufficient to support an action based on abuse of process. Ledford v. Smith, 212 N.C. 447, 193 S.E. 722; Carpenter, Baggott & Co. v. Hanes, 167 N.C. 551, 83 S.E. 577; Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268.
Consequently, in our opinion, the complaint only states a cause of action for malicious prosecution. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223, and cited cases.
Article 3, Chapter 1232 of the 1957 Session Laws of North Carolina, codified as G. S. § 122-35.1 through G.S. § 122-65, was in effect until 1 July 1963, the effective date of Chapter 1184 of the 1963 Session Laws of North Carolina. Therefore, the law in effect on 28 January 1960 is applicable in this case.
G.S. § 122-46 was in effect on 28 January 1960 and, among other things, provided: "Neither the institution of a proceeding to have any alleged mentally disordered person committed for observation as provided in this section nor the order of commitment by the clerk as provided in this section shall have the effect of creating any presumption that such person is legally incompetent for any purpose. Provided, however, that if a guardian or trustee has been appointed for any alleged mentally disordered person under G.S. 35-2 or 35-3 the procedure for restoration to sanity shall be as is now provided in G.S. 35-4 and 35-4.1."
In view of the fact that neither the institution of the proceeding complained of, nor the order of the clerk entered therein, "shall have the effect of creating any presumption that such person is legally incompetent for any purpose"; and the further fact that the plaintiff is entitled upon a motion for nonsuit to have her evidence considered in the light most favorable to her, we hold that the evidence is sufficient to carry the case to the jury on the questions of malice, lack of probable cause, and favorable termination of the commitment proceeding.
It is stated in 34 Am.Jur., Malicious Prosecution, § 7, page 706, as follows: "One of the elements necessary to authorize an action for malicious prosecution is the commencement and prosecution of a judicial proceeding against the plaintiff." Ibid., § 33, page 723, it is said: "If, upon a discharge of a writ of habeas corpus, the proceeding against the accused can go no further, there is a sufficient termination to sustain an action for malicious prosecution."
We have heretofore held that a proceeding pursuant to G.S. § 122-46 is a judicial proceeding. Bailey v. McGill, supra, and Jarman v. Offutt, supra.
*402 There was evidence in the trial below tending to show that the plaintiff on 28 January 1960 was not psychotic nor in need of observation in an institution for the observation and treatment of the mentally disordered. Furthermore there was no evidence in the trial below tending to show that the mental condition of the plaintiff was any different on 28 January 1960 than it was on 22 February 1960, the date of her discharge upon a writ of habeas corpus, in which hearing the court found as a fact that the plaintiff was not psychotic, that she was being improperly restrained of her liberty, and thereupon ordered her release.
In an action for malicious prosecution the plaintiff must not only prove malice but the want of probable cause and termination of prosecution or proceeding in plaintiff's favor. Barnette v. Woody, supra. Malice alone is not sufficient to support an action for malicious prosecution. Moreover, in an action for malicious prosecution, the acquittal of defendant by a court of competent jurisdiction does not make out a prima facie case of want of probable cause. Morgan v. Stewart, 144 N.C. 424, 57 S.E. 149; Bell v. Pearcy, 33 N.C. 233.
In 34 Am.Jur., Malicious Prosecution, § 47, page 732, it is said: "* * * A definition sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish, for the complete legal idea expressed by the term `probable cause' is not to be gathered from a mere definition. However, * * * the standard of conduct for beginning or continuing any proceeding, whether civil or criminal, is that of a reasonable or ordinarily prudent man placed in the same situation as the defendant. That is, if a reasonable man would have believed and acted under the circumstances as the defendant did, there would be probable cause; otherwise not. It is to be noted that the conduct of the defendant is to be weighed in view of what appeared to him at the time of instituting the prior proceeding, not in the light of subsequently appearing facts."
Upon this record, in our opinion the judgment of nonsuit entered below should be
Reversed.
PARKER and BOBBITT, JJ., dissent.
