These appeals arise out of a complaint filed by Dr. V. J. Devine, plaintiff-appellant and cross-appellee, hereinafter called plaintiff, against James S. Patteson, Jr., defendant-appellee and cross-appellant, hereinafter called defendant, praying for damages for malicious prosecution. Plaintiff and William F. Snakard had been indicted February 16, 1954, for use of the mails in interstate transportation and use of instruments of transportation and communication in interstate commerce in an alleged conspiracy to defraud defendant and others in violation of Title 18 U.S.C. §§ 371, 1341, and 15 U.S.C. §§ 77q(a) (1) and 77e(a). The transactions covered by the indictment dealt with negotiations and agreements as to oil properties in Texas and as to a gasoline plant in Illinois. They involved witnesses and events in three states. The trial consumed almost two weeks. Plaintiff and Snakard were acquitted. Later plaintiff filed this action for damages against defendant, who had been prosecuting witness in the indictment.
The complaint averred that defendant maliciously, intentionally, and without just cause stated to the United States District Attorney that plaintiff had violated certain laws of the United States. At the trial of the malicious prosecution case plaintiff testified that the actual expense to which he was personally subjected in contesting the prosecution, consisting mainly of attorneys’ fees and traveling expenses, amounted to over' $19,000. This was not disputed. Defendant did not take the stand and no evidence was introduced to the contrary. The jury returned a verdict for plaintiff, allowing compensatory damages in the' sum of $500.00 and punitive damages in the sum of $1.00.
The complicated indictment contained 8 counts, all based upon transactions alleged to be fraudulent, and charged numerous overt acts and other transactions which need not be set forth. Snakard, plaintiff, and others unknown, hereinafter called the Devine group, were-charged with having misrepresented in 1950 and 1951, in pursuance of an unlawful conspiracy, their ownership of certain assets which were proposed by the De*830vine group to be transferred to a joint venture for the operation of the mutual benefit of the Devine group and defendant and others, hereinafter called the Patteson group.
The evidence in the instant ease was in conflict upon the principal claims of misrepresentation. We do not discuss them because the jury found for plaintiff and necessarily found that the misrepresentations alleged had not been made and the fraudulent acts charged had not been performed.
Plaintiff’s appeal attacks only the amount of the verdict. He contends that, as the jury found defendant liable for malicious prosecution, it was required to consider the elements of damage shown by the uncontradicted testimony as to the extensive legal and traveling expenses incurred in the criminal prosecution. Plaintiff contends that the jury’s failure to consider the uncontradicted evidence is so inconsistent with its verdict on liability as to require reversal and a new trial upon that feature of the case as a matter of law.
Defendant’s cross-appeal is based principally upon the ground that the returning by the grand jury of an indictment against plaintiff and Snakard constituted prima facie evidence of probable cause, which was in no way rebutted in the instant trial; that there was no evidence from which the jury could rightly conclude that the indictment was procured by fraud, false testimony, concealment of material facts, malice, lack of good faith, or other improper contrivance on the part of defendant; and that the motion for directed verdict or for judgment non obstante should have been sustained. If this contention is correct, we do not reach the question of damages and therefore we first consider whether the District Court erred in submitting the issue of probable cause to the jury. The existence of probable cause is in general a mixed question of law and fact. Cf. F. W. Woolworth Company v. Connors, 142 Tenn. 678, 222 S.W. 1053, 1054. The “ ‘honest and reasonable belief of the party commencing the prosecution’ ” is a material element in the determination of probable cause. F. W. Woolworth Company v. Connors, supra. The advice of the District Attorney must be honestly sought in order that the defense of probable cause may be sustained. Cooper v. Flemming, 114 Tenn. 40, 84 S.W. 801, 68 L.R.A. 849; Nashville Union Stockyards, Inc., v. Grissim, 13 Tenn. App. 115.
The District Court charged the jury fully upon the applicable law of probable cause and no question is raised here as to the correctness of the charge. He instructed the jury that:
“Where it appears that there was probable cause, that is, reasonable cause to believe the plaintiff had been guilty of the crimes with which he was charged, or any one of them, for the institution of the original criminal proceedings, then same would be an absolute defense in this action. * * *
“ * * * if you find from the proof that the defendant, at the time the prosecution herein was instituted, acted upon such state of facts known to him as would induce a belief in the mind of a prudent and discreet man that an offense had been committed by the plaintiff Devine, he would not be liable.”
These instructions were certainly favorable to defendant. In view of these and other portions of the charge it is evident that the jury found that the defendant in pressing the criminal charge did not act in good faith, nor under an “honest” belief in plaintiff’s guilt. If there was evidence to support such a finding the District Court was required to submit the question to the jury.
Defendant stresses the fact that prior to the indictment the United States postal inspector made an extensive investigation in locations in Arkansas, Tennessee, and various cities of Texas, interviewing numerous persons before the indictment was returned. The Securities and Exchange Commission and the FBI at certain points conferred with the postal department. However, it was shown with*831out contradiction that, while the alleged fraudulent acts and representations of the Devine group took place around December, 1950, and January, 1951, by agreement of the parties early in 1951 Snakard was removed as trustee of Padre Petroleum Company, the association formed December 15, 1950, to operate the properties involved. Around March 20, 1951, the Pattoson group was given full authority to control future Padre operations, and the Devine group turned over to the Patteson group a 29 % interest in Padre. In May, 1951, defendant’s control of Padre was extended. It was not shown in the instant case that the minutes of the meetings held in connection with these transactions suggest that plaintiff and Snakard had conspired to defraud the investors.
In July, 1951, defendant and Magnussen held Snakard in defendant’s hotel room at Brownwood, Texas, under threats of arrest and prosecution for the purpose of securing a further 15% from the Devine group. It is not denied that about this time defendant told plaintiff that if plaintiff or his group did not turn over the 15% interest plaintiff would be prosecuted and defendant would see that it got “in every paper in the United States.” In defendant’s testimony given in the criminal case, introduced in the instant trial, defendant admitted that he forced Snakard to call his brother and plaintiff and tell them that unless they reduced their interest to 1% “we would prosecute him for fraud.” Defendant said that “We certainly told him that if he did not put these telephone calls through, we were going to start prosecution * * * we just told them that either they were going to reduce it [their interest] or we would start prosecution.” He said, ' “My group * * * got Bill Snakard down in Brownwood, Texas, and extracted from him his fifteen per cent.” The minutes of July 17, 1951, show that the 15% interest was taken from the Devine group. Defendant, who on June 1, 1951, had secured a mortgage of $45,000 covering all the Padre properties, later foreclosed the mortgage and became sole owner. Padre’s financial report of February 29, 1952, shows an ownership equity in Padre of $345,809.96. This testimony was not contradicted. Defendant did not take the stand in the malicious prosecution case.
Since defendant for a considerable period, as shown by the uncontradicted testimony, accepted the activities of plaintiff and Snakard in Padre’s affairs without any claim of fraud and later extorted from Snakard and plaintiff practically their entire interest by threats of prosecution, the inference of good faith and probable cause arising from the indictment was rebutted. The question whether defendant acted in good faith in pressing the indictment in 1954, so long after the civil liability of plaintiff, if any, at least in large degree, had been settled, became a question of fact. Under Tennessee law defendant’s failure to testify in the malicious prosecution case warranted an inference of bad faith and want of probable cause. Bankhead v. Hall, 34 Tenn.App. 412, 238 S.W.2d 522, 527. The District Court did not err in submitting this issue to the jury.
Defendant raises a second question which we deem it unnecessary to discuss in detail. He maintains that it is shown by undisputed proof that the substance of the charges in the indictment is true and therefore contends that the judgment against him should be reversed under the doctrine of Bry-Block Mercantile Company, Inc., v. Proctor, 10 Tenn.App. 651. However, the premise of this contention is lacking. The proof claimed to establish the substance of the charges in the indictment was not undisputed. The material charges of the case were controverted and the jury, in fact, found that they were not true. The cited decision has no application.
We conclude that defendant’s cross-appeal has no merit.
As to plaintiff’s appeal, in his contention that the verdict must be set aside for inadequacy of the amount awarded plaintiff relies upon a decision of this *832court, Reisberg v. Walters, 111 F.2d 595. We there held that the award of a jury in a personal injury case arising out of an automobile accident was grossly inadequate if it failed to consider essential elements of damages in an amount conceded to have been suffered, and demonstrated that the jury had failed to abide by the instruction of the court. The Reisberg decision reaffirmed the doctrine of Pugh v. Bluff City Excursion Company, 6 Cir., 177 F. 399, 401, which held that in case of inadequacy of verdict such as here presented it was error of law to overrule a motion for new trial. Cf. Miller v. Maryland Casualty Company, 2 Cir., 40 F.2d 463. In this case Judge Learned Hand, speaking for the court, declared that, while courts will rarely review an award for damages, orders refusing new trials because of the .amount of the verdict have been reversed in cases where the jury did not attempt to appraise the plaintiff’s loss at all and where the verdict was less than the .amount of undisputed loss. Cf. Spero-Nelson v. Brown, 6 Cir., 175 F.2d 86, in which the doctrine of the Reisberg case, supra, was specifically approved.
Defendant contends that since the testimony as to legal expense was given by plaintiff only the jury was authorized to disregard it. But it is uncontradicted that plaintiff made preliminary legal investigations in three states, employed numerous lawyers in all of these states, and vigorously contested the criminal prosecution lasting almost two weeks. These undisputed facts constitute evidence of expense in addition to plaintiff’s .statements.
Since the verdict was less than the amount of the loss shown and not disputed, the motion for new trial should have been granted. We see no essential difference between physical damage suffered in a personal injury case and professional and psychological damage suffered in the trial of a criminal case. While there was controversy as to defendant’s liability, there was no controversy as to the necessity of plaintiff’s incurring the expenses listed, nor as to the fact that they were actually incurred. The award of $500 was around %o of the actual and specific damages proved and nothing was allowed for the undisputed injury shown to have been suffered by plaintiff in his professional reputation, standing, and loss of practice.
While in general the granting of a new trial is a matter of discretion with the court, it is not so when the verdict is inconsistent on its face. Pugh v. Bluff City Excursion Company, supra. The jury found plaintiff was entitled to recover. In view of the undisputed evidence as to expense caused by the wrongful prosecution it is evident that the jury did not comply with the instructions of the court.
As to punitive damages the award is peculiarly within the discretion of the jury. We cannot say that the discretion was abused, and we do not set aside the verdict of $1.00. Davis v. Farris, 1 Tenn.App. 144; Hostettler v. Vaden, 13 Tenn.App. 454, 123 A.L.R. 1130.
The District Court erred in not granting a new trial limited to the question of compensatory damages. Federal Rules of Civil Procedure, rule 59(a), 28 U.S.C.; Chesevski v. Strawbridge & Clothier, D.C., 25 F.Supp. 325; Barron and Holtzoff, Federal Practice and Procedure, Vol. 3, § 1304, and § 1307, which reads as follows:
“If issues are framed for the jury and the issue as to which a new trial is required is separate from all other issues, and the error requiring a new trial does not affect the determination of any other issue, the scope of the new trial may be limited to the single issue. Thus new trials have been limited to the issue of damages. * * * ”
A majority of the court thinks it would be unjust to a plaintiff who has proved to the satisfaction of the jury that he was subjected to a malicious prosecution to have to retry the question, not only of *833damages, but also of liability. If the issues are as we think, separate and distinct, conceivably plaintiff might be compelled to pay a second very large amount for legal expenses in order to collect the amounts expended in the first suit. A majority of the court considers that the issue of damages here is entirely separate from other issues presented. If the issue of compensatory damages is retried defendant will have a second opportunity to contest the claimed legal and other expenses which in the instant case he did not contradict. This is not unjust to him nor does it in any way affect the question of liability. Whether plaintiff spent $500, $5,000, or $19,000 in fighting the indictment has no bearing upon whether defendant maliciously and without probable cause secured plaintiff’s indictment. The amount of the expense has no probative connection with the issue of liability, hence the issue may be retried singly.
We think this conclusion is in accord with the applicable law. While a new trial should cover the issue of liability as well as of damages if these issues are so interwoven as to be inseparable, we think this case does not call for the application of that rule. The majority of the cases cited in the dissenting opinion are personal injury cases. In this type of controversy, obviously the imponderables arising from cases which present highly emotional features are omnipresent. In a number of the cases cited there was an issue, not only of negligence but of contributory negligence. Southern Railway Company v. Madden, 4 Cir., 235 F.2d 198; Bass v. Dehner, D.C., 21 F.Supp. 567; Grant Company v. Tanner, 170 Tenn. 451, 95 S.W.2d 926. The Fourth Circuit in Southern Railway Company v. Neese, 216 F.2d 772, held that the issues of damage and liability were separate and distinct. This case was reversed by the Supreme Court, 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60. However, in both decisions, that of the Circuit Court and that of the Supreme Court, the verdict as to liability was sustained.
In the Madden case, as to the issue of liability the Fourth Circuit found that prejudicial error existed in the admission of testimony and in the charge of the court. Quoting from and following an opinion by Chief Justice Rugg in Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, the court held in effect that it was obvious in the Madden case that no jury had decided the issue of liability against the railway company on “justifiable grounds.”
Here defendant’s contention as to liability is that the undisputed facts demonstrated the existence of probable cause. This issue was correctly submitted to the jury, which found in favor of the plaintiff and the finding is supported by the record. Reversible error exists only in the amount of the verdict. Chesevski v. Strawbridge & Clothier, supra; Dodson v. Raker, D.C., 1 F.R.D. 368.
The judgment as to compensatory damages is set aside and a new trial is ordered upon that issue only. The judgment in all other respects is affirmed.