dissenting.
I agree with the majority opinion that the instant case is controlled by this court’s recent decision of Griffin v. Ga. Power Co., 186 Ga. App. 565 (367 SE2d 832) (1988), in which this writer was one of the five judges constituting the majority vote. Upon further consideration of the issue presented by Griffin and the instant case, however, I am now convinced that the dissenting opinion in Griffin states the better rule.
Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987), states a hard and fast rule, i.e, denial of a motion for a directed verdict of acquittal constitutes a binding determination of the existence of probable cause. It is not inconceivable that a trial court may err in denying the motion and thereby assure the acquitted criminal defendant’s failure in any subsequent action for malicious prosecution. This court cannot avoid the application of Monroe v. Sigler where only one motion for *3directed verdict is made and denied, but we need not unnecessarily extend it to situations where two motions for directed verdict of acquittal are made, with the first motion being denied and the second being granted. As noted by the dissenting opinion in Griffin, extending the application of Monroe v. Sigler “ignores the practical realities that often attend and influence the disposition of initial motions for directed verdict in criminal cases.” It also “requires no resort to transcendentalism for us to know” that sooner or later a party will avoid civil liability despite having maliciously instigated the prosecution of another. Southern R. Co. v. Wafford, 7 Ga. App. 652 (67 SE 831) (1910). Such a result understandably will strike some as unfair.
Decided June 29, 1988 Rehearing denied July 21, 1988 J. Anderson Davis, Karl M. Kothe, for appellants. John E. Sawhill III, William Sparks, for appellee.In the instant case, the initial denial of the motion for directed verdict of acquittal, followed by the eventual grant of the second motion, should not require a finding as a matter of law that probable cause existed. Rather, it should have no conclusive evidentiary effect in a subsequent action for malicious prosecution. Accordingly, I believe that Griffin should be overruled, and that the trial court’s denial of the appellants’ motion for summary judgment in this case should be affirmed.
I am authorized to state that Presiding Judge Banke, Judge Ben-ham, and Judge Beasley join in this dissent.