ON MOTION FOR REHEARING
Decided Sept 24, 1932
BY THE COURTThis cause is submitted upon a motion for rehearing. The motion is made b'y The Royal Indemnity Company. Counsel for ‘the indemnity company urge that they should be heard and reargue the case. We are of opinion that under the rules of this court the case must be submitted upon the motion and the briefs. We do not consider that there is any valid reason for reargument of the case.
The first proposition in the motion challenges the regularity of the consideration of the case by the court. The proposition stated is that the court-did not in the opinion of counsel have all the briefs before it, did not have the pleadings and did not have any portion of the record except the bill of exceptions.
The fact is that this case was considered both at Columbus and Dayton by the entire court. All the papers were in each instance before the court for consideration. This included the briefs of all counsel in the case.
Again it is urged that the judge who wrote the opinion must have misunderstood the nature of the case. In the opening paragraph of the opinion it was1 stated that the action was one for false imprisonment, whereas the action was one for malicious prosecution. This was a mistake of the Judge (Allread) who wrote the opinion. We regret that this occurred, but after the first paragraph in the opinion there is a discussion of the principles applying to malicious prosecution. We think there is no error in this statement justifying a reversal.
Upon the question as to the plaintiff in error’s responsibility for the prosecution as a question of law we were and still are in some doubt, but after a full consideration of the case we reach the conclusion that the trial judge was right in submitting the question to the jury.
. The question of the participation of the Indemnity. Company in .the prosecution and *51of its malice and of want of probable cause was therefore one for the consideration of the jury.
Counsel in their application for a rehearing cite the Western Oil Refining Company v Glendening, 156 NE, page 182.
In this case the fourth and fifth syllabi indicate the difference between that case and the present, The fourth proposition of the syllabus is as follows:
“Where citizen, without malice, reports to proper officer any violation of criminal law in state, and also thereafter makes an independent investigation of matter reported to him, and following such investigation returns an indictment or information, person making report is not liable in damages because of prosecution growing out of independent investigation.”
It will be noted that the citizen sought to be held liable acted “without malice.” In the present case, after the jury found that the indemnity company caused the prosecution it would be further necessary for the jury to find, in order to apply this case, that the indemnity company acted “without malice.” The fifth proposition is as follows:
“A person has not caused a prosecution in a sense that renders him liable therefor when he acts only in subordination to prosecuting attorney, and under the latter’s direction, nor when he states fair facts to such attorney, leaving him to judge of propriety of proceeding with charge.”
This court has re-read the bill of exceptions and re-exainihéd the briefs and upon a careful review of the evidence we are unable to find that the verdict is contrary to the evidence or is the result of passion and prejudice. While the evidence is not clear and strong, we think there Was evidence from which the jury could draw the inference that the indemnity company caused this proceeding to be instituted, that its action was malicious and without probable cause. These were questions for the jury, and this court is unable to find that their verdict is contrary to the clear and manifest weight of the evidence upon the basic proposition as to the liability of the indemnity company.
We do, however, determine that the verdict is excessive and that unless the plaintiff in the court below remits the sum of $5000.00 the verdict must be set aside. We concede that this is a large amount to include in a remittitur. The claim may be made that this remittitur is in itself proof that the verdict was the result of bias and prejudice. We do not, however, so regard it, but adhere to the .former opinion. Finding no sufficient ground to justify a motion for a rehearing, we are of opinion that the same must be overruled.
ALLREAD, PJ, HORNBECK and KUNKLE, JJ, concur.