
    No. 246
    ROLLA A. WAGNER v. L. A. AULDRIDGE
    Error to Clark County Appeals
    No. 18399.
    Filed in Supreme Court Feb. 21, 1924.
    2 Abs. 163
    745. MALICIOUS PROSECUTION.
    Attorneys — Zimmerman, Zimmerman and Zimmerman, Springfield; contra not known.
   The plaintiff in error, Wagner, had the defendant in error, Auldridge, arrested for theft of his automobile, which he found in Auld-ridge’s possession. The affidavit was made before the clerk of the police court of North Lewisberg, and the following day the accused was brought to-the county jail at Springfield, where he remained ten days, and until the police prosecutor caused the charge against him to be dismissed. Wagner claimed that he did not know of any hearing of the case, and that he was sincere in his belief that' Auldridge committed the theft.

Auldridge commenced this action in the Common Pleas, for damages for malicious prosecution. It was tried and resulted in a verdict against Wagner for $3,000. A motion for a new trial, supported by affidavits, was filed and overruled. Then error was prosecuted to the Court of Appeals^ the grounds being errors in admission and rejection of evidence; errors in the general charge, and was against the manifest weight of the evidence; and that the damages found were excessive.

The court of Appeals found that the damages were excessive and ordered that the judgment be set aside, unless a remittitur of $2,000 Was made. This was agreed to by Auldridge and modified judgment affirmed.

Wagner claimed that Jordan, one of the jurors, who, upon the voire doire, said that he knew nothing of the case, by affidavit of another juror, had divulged to him that he, Jordan, knew all about the case, detailing the conversation. Other similar affidavits were filed, to establish the misconduct of the jury.

Auldridge was permitted to testify, over objections and exceptions, that there were about 150 people on hand to witness his arrest; that the jail in which -he was confined was so crowded that he had to sleep on the concrete floor, covered with tobacco spit; that “drunks” came in and fell over him, all night; and that he was taken from the jail to the police court “with a bunch of criminals,” handcuffed. In reply to this evidence it was claimed by Wagner that in such a case he could not be held liable for the wrongful acts of officials over whom he had no control.  