Washington Bell, brought suit for damages against Clyde Parsons, in the Holmes Common Pleas alleging that defendant came to plaintiff’s home when plaintiff was sick and assaulted him, fractured three of plaintiff’s ribs and tore his clothes. Defendant denied the allegations. The jury returned a verdict for Parsons and judgment was entered thereon.

Error was prosecuted, it being claimed by Bell that the verdict is against the weight of the evidence and that one Rudy, who sat as a juror in the trial was prejudiced. The Court of Appeals held:

1. Rudy’s answers in his examination showed he had heard nothing abouf the case and had not formed or expressed gn opinion in the merits. Record evidence discloses that he had formerly sat on the grand jury and heard practically all the evidence .in the case.

2. Where a party seeks a new trial on the ground of misconduct of a juror and the act constituting such misconduct was one from which prejudice could naturally be inferred, or was such that thS party seeking the new trial was' prejudiced thereby, in the absence of showing to the contrary, a new trial should be granted.

3. The facts in regard So the alleged misconduct of Rudy are not sustained, for in order that a juror may be found guilty of misconduct, or was disqualified from sitting as a fair and impartial juror, tjiere must be facts which tend to show that a fraud had been perpetrated upon the losing party or that he was so prejudiced as to prevent a fair and impartial trial. ’

4. This not being disclosed by the record, and the jury being warranted in finding as it did, judgment is affirmed. :

Judgment affirmed.