dissenting. I respectfully dissent from the opinion of the majority.
The majority reverses the district court, basically holding there is no cause of action for negligent malicious prosecution under Tennessee law. I think there is sufficient evidence here for the matter to have been sent to the jury, and to conclude that the evidence was sufficient for a jury to find for the Plaintiff in this cause of action for malicious prosecution under Tennessee law. At trial, Plaintiff argued that Kroger’s failure to properly investigate the identity of the offender proved that Kroger did not have probable cause to institute criminal proceedings against Plaintiff. Plaintiff maintained, and I think properly so, that the jury could reasonably have inferred malice from Kroger’s actions.
On appeal, Kroger presented several assignments of error: (1) that there is no such action as negligent malicious prosecution; (2) that the jury instructions were misleading; and (3) that remitter was appropriate. ■ For the reasons discussed below, I respectfully dissent from the majority opinion.
*218Viewing the evidence most favorably in favor of the Plaintiff, as we must, and giving the Plaintiff the benefit of all reasonable inferences, as we must, I think there was sufficient evidence presented to raise material issues of fact for the jury. Those issues are whether Kroger had probable cause to believe Plaintiff was guilty of passing bad checks, and whether malice could be inferred from Kroger’s actions. Plaintiff, Terrence D. Lawson, was not the same person who passed the bad checks to Kroger. Plaintiff is not even of the same gender as the person who passed the bad checks. Turner, Kroger’s manager, did not enquire into the description of the culprit. Additionally, Kroger did not verify that the driver’s license number, Mastercard number or Social Security number, handwritten on the checks by the cashier, belonged to Plaintiff. Furthermore, Kroger did not contact the Plaintiff about the dishonored checks.
It appears to me that the facts presented to the jury were sufficient for the jury to decide not only that Kroger did not have probable cause to institute legal proceedings against the Plaintiff, but also that malice could reasonably be inferred from Kroger’s institution of such criminal proceedings. It is true that malice can be inferred when a criminal prosecution is instituted without probable cause, and I think it could properly be inferred in this case. The matter was dealt with by the Tennessee Court of Appeals in Carter v. Baker’s Food Rite Store, 787 S.W.2d 4 (Tenn.Ct.App.1989). In discussing a case very similar on the facts to this case, the Tennessee Court said:
Defendants next assert that Plaintiff did not prove malice, which is an essential element in a malicious prosecution case. We agree that malice is an essential element in this cause of action; however, malice may be inferred from the fact that a criminal prosecution was brought without probable cause. (Cite omitted). ‘The inference is not one of law but is a presumption of fact which may be rebutted, thus making malice an issue to be decided by the jury where a criminal prosecution is instituted without probable cause.’ (Cite omitted). Thus, if the trial court should determine that probable cause existed after a resolution of the disputed issues concerning the circumstances of the case, malice would be a question of fact for the jury. (Emphasis added).
Id. at 8.
Thus, it appears clear that the district court did not err in denying Defendant’s motion for JNOV. Under Tennessee law, Plaintiff was entitled to all reasonable inferences, and to have the evidence viewed most favorably for him upon such a motion.
I think it is also highly significant that Kroger did not object to the jury instructions when they were provided to counsel at the charge conference, nor did Kroger object when the jury was charged.
Rule 51 of the Federal Rules of Civil Procedure clearly states that a party may not assign as error a jury instruction that was not objected to in a timely fashion. The Rule provides in relevant part: “No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.” Fed. R.Civ.P. 51. There is one exception to this general rule. The court may grant a new trial in spite of a party’s failure to object if the court concludes that the erroneous instruction may have resulted in a miscarriage of justice. Fryman v. Federal Crop Insurance Corp., 936 F.2d 244, 248 (6th Cir.1991); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987). The Defendant contends that the jury instructions were so misleading and inadequate that Kroger was entitled to a new trial. Defendant makes this assertion in spite of the fact it did not object to the language when they were provided to counsel in the charge conference, nor did it object when the jury was so charged.
As pointed out above, it is fundamental law that a litigant has a duty of objecting to a charge at the time it was made to allow the trial court to correct its error. Here, this did not happen. Rather, the attorney for Kroger approved the charge, and made no objection to it after it was presented to the jury. Furthermore, I conclude that the jury in-*219struetíons were not so erroneous as to constitute a miscarriage of justice.
Finally, I conclude that the court did not abuse its discretion in denying a new trial. On appeal, Kroger argued that the jury instructions were so erroneous as to constitute a miscarriage of justice, and that the verdict was excessive. I have already dealt with the contention that the jury instructions were erroneous. With reference to the excessiveness of the verdict, certainly $40,000 is not an excessive verdict to award to Plaintiff for injuries to his person, property or reputation that proximately resulted from the unsuccessful criminal action. I think that enough evidence was presented to demonstrate that Plaintiff suffered sufficient injuries as a result of Kroger’s institution of criminal proceedings against him to justify the verdict of the jury.
For these reasons, I respectfully dissent from the majority opinion.