(dissenting).
I am in agreement with the statement in the majority opinion of the general rule that under certain conditions where the issue of damages is entirely separate from the issue of liability, a new trial may be granted limited to the issue of damages only. This Court has so held. Thompson v. Camp, 6 Cir., 167 F.2d 733. But as stated in that case, the court should proceed with caution, with a careful regard for the rights of both parties, and only in those cases where it is plain that the error which has crept into one element of the verdict did not in any way affect the determination of any other issue. The error in that case was an error in the instructions dealing with the question of damages and had no bearing on the issue of liability. In my opinion, the rule is not applicable to the present case.
It is, of course, true as stated in the majority opinion, that as an abstract question of law whether the plaintiff spent $500, $5,000 or $19,000 in fighting *834the indictment has no bearing upon whether defendant maliciously and without probable cause secured plaintiff’s indictment. This would be a complete answer to the issue here involved if the jury followed this principle of law in reaching its verdict. It seems to me that the jury not only refused to follow the law and the evidence on the question of damages, which is the basis of the ruling that a new trial should be granted, but also at the same time refused to follow this principle of law which requires that questions of liability and damage be independently determined. I do not think we can reasonably say with any degree of certainty that the jury refused to follow the law on the question of damages but did follow the law on the question of liability. Verdicts which are obviously compromise verdicts show rather conclusively that as a practical matter, and in disregard of the rule of law to the contrary, the questions of the amount of damages and determination of liability are closely interwoven. This appears to me to be such a case.
It seems clear to me that this was a compromise verdict, that most of the jurors in this case were not in favor of returning a verdict for the plaintiff, and would not have agreed to a verdict for the plaintiff if it would result in awarding to him any substantial amount. If the jury had unanimously been in favor of a verdict for the plaintiff, the amount of the verdict would undoubtedly have been many times greater. The evidence to sustain such an amount was undisputed. There was no reason appearing in the record why as reasonable jurors they would not have followed the evidence on this issue if they were satisfied that the defendant wronged the plaintiff as claimed. To me, the obvious answer as to why the verdict was only $500 is not that they failed or refused to follow the evidence on the question of damages, but that most of the jurors were not satisfied that there should be a verdict in any amount against the defendant. With a few jurors strongly favoring a verdict in a substantial amount, and in order to reach a verdict and avoid a new trial those jurors opposed to a verdict for the plaintiff agreed to return a verdict for him if it was limited to a relatively small amount. This appears to me to be a more logical analysis of the verdict than to say that the twelve jurors were unanimously in favor of a verdict for the plaintiff, but arbitrarily refused to follow the law and evidence on the question of damages. In the present case it is at least probable that the questions of liability and the amount of damages were, as a practical matter, so closely interwoven that if a new trial is to be granted, it should be granted in its entirety and not limited to the question of damages only. Schuerholz v. Roach, 4 Cir., 58 F.2d 32, 34, certiorari denied 287 U.S. 623, 53 S.Ct. 78, 77 L.Ed. 541. Southern Railway Co. v. Madden, 4 Cir., 235 F.2d 198, 204. Unless it clearly appears that the issue of damages was distinct and separable from the issue of liability, a new trial on the. issue of damages alone should not be granted. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188; Thompson v. Camp, supra, 6 Cir., 167 F.2d 733, 734.
The point is well illustrated by the case of Bass v. Dehner, D.C., 21 F.Supp. 567, where the Court granted a new trial because the damages were inadequate but refused to limit the new trial to the question of damages only. On the retrial the jury returned a verdict for the defendant. Bass v. Dehner, 10 Cir., 103 F.2d 28, certiorari denied 308 U.S. 580, 60 S.Ct. 100, 84 L.Ed. 486, rehearing denied 308 U.S. 635, 60 S.Ct. 136, 84 L.Ed. 528.
The question usually arises in tort actions, although it is not so restricted. Gasoline Products Co. v. Champlin Refining Co., supra, 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188. The present action is a tort action. See also: W. T. Grant Co. v. Tanner, 170 Tenn. 451, 95 S.W.2d 926; Simmons v. Fish, 210 Mass. 563, 97 N.E. 102; Leipert v. Honold, 39 Cal.2d 462, 247 P.2d 324, 29 A.L.R.2d 1185; Johnson v. Sgourakis, 20 N.J. *835Super. 77, 89 A.2d 273; Parker v. Allen, 171 Kan. 360, 233 P.2d 514; Flaugh v. Egan Chevrolet, Inc., 202 Minn. 615, 279 N.W. 582; Reay v. Beasley, 49 Ariz. 362, 66 P.2d 1043; Murray v. Krenz, 94 Conn. 503, 109 A. 859, 861.
I do not believe the ruling in Southern Railway Company v. Neese, 4 Cir., 216 F.2d 772, cited in the majority opinion, should be relied upon. As noted in the majority opinion this ruling of the Court of Appeals was subsequently reversed by the Supreme Court, 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60. Also, the same Court of Appeals later held that where it is clear that an inadequate verdict is a compromise verdict, the new trial should not be limited to the question of damages alone. Southern Railway Company v. Madden, supra, 4 Cir., 235 F.2d 198, 204.
I think the statement of the Supreme Court in Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603, is directly applicable to this case and states the rule which we should follow. The Court said: “Where the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment of damages.” (Emphasis added.) As pointed out in the majority opinion, this court has in two cases held that a new trial should have been granted by reason of inadequacy of damages. Pugh v. Bluff City Excursion Co., 6 Cir., 177 F. 399; Reisberg v. Walters, 6 Cir., 111 F.2d 595. Although the question is not discussed in the opinions, in neither of the cases was the new trial limited to the question of damages. In the Reisberg case we referred to Dimick v. Schiedt, supra, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, as being one of the cases pointing the way to our ruling in that case, and quoted in the opinion the foregoing statement of the Supreme Court.