dissenting.
I respectfully dissent because the trial court was correct in denying summary judgment to defendant Remeneski on the fighting words charge. This was the only charge prosecuted by Remeneski, and it suffered a directed verdict because the evidence could not support a verdict. It was the solicitor who added a simple assault charge, which the jury rejected.
Remeneski contended that the fighting words charge was closely related to the simple assault charge so that the denial of a directed verdict on the simple assault charge in the preceding criminal trial constituted a binding determination of the existence of probable cause on the fighting words charge. It is true that a denial of directed verdict on a criminal charge establishes probable cause as a matter of law. Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987). In other words, if a trial court, after hearing and seeing the State’s evidence, finds that there was enough evidence of each of the elements of the charged crime to allow a jury to decide guilt or innocence, probable cause to prosecute existed. Teasley v. State, 214 Ga. App. 646, 647 (2) (448 SE2d 904) (1994).1
But it is too large a leap to conclude as a matter of law that this ruling ipso facto throws a cover of protection over charges of other crimes allegedly arising from the same incident. Probable cause for one does not necessarily mean probable cause for another. As we recognized the first time this case was here, the charges instigated were based on “two separate and independent criminal statutes (OCGA §§ 16-11-39 and 16-5-20) [the purpose of which is] the prevention and criminalization of constitutionally unprotected words and/or acts *18directly leading to the immediate threat of or incitement to violence. . . .” State v. Klinakis, 206 Ga. App. 318, 321-322 (1) (b) (425 SE2d 665) (1992). The criminal trial court properly ruled on each charge separately. It granted the directed verdict on the fighting words charge, which meant there was no evidence on which guilt could be found. Teasley, supra.
Remeneski depended for his faulty theory on Day Realty Assoc. v. McMillan, 247 Ga. 561 (277 SE2d 663) (1981). But as distinguished by the trial court, that case involved only one charge of the theft of several items, and the Supreme Court held that the lack of probable cause as to one of the items “in the same charge” does not give rise to an action for malicious prosecution. Id. at 562. So long as there is probable cause for some of the items listed in the charge, it is not malicious to prosecute for theft. The charge of theft is grounded.2 The Supreme Court did not intimate or even discuss, much less hold, that where a person is accused of multiple charges of different crimes, and the charge pressed by the accuser is unfounded in that there was a lack of probable cause to believe it was committed, it would not be malicious prosecution as to that charge so long as one of the other charges did not lack probable cause.
It is a serious matter to charge someone with a crime, and a serious and sometimes devastating matter to be so charged. One who causes damage by doing so maliciously and without reasonable cause to believe that the person he is accusing is guilty of that crime should not be permitted a shield from civil liability simply because there was probable cause to believe some other charged crime was committed. Where there is evidence of the elements of the tort as set out in OCGA § 51-7-40 with respect to the separate and independent alleged crime, the wrongfully accused person should not be deprived of his right of action. Thus I agree with the trial court and with other courts which have taken this view. See, e.g., Janetka v. Dabe, 892 F2d 187, 190 (2nd Cir. 1989); DeLaurentis v. City of New Haven, 597 A2d 807, 822 (Conn. 1991); Cuthrell v. Zayre of Virginia, 201 SE2d 779 (Va. 1974).
If there are any circumstances under which the extension of Day Realty created in the majority opinion might be appropriate, this is not such a case. The criminal court granted a directed verdict on the fighting words charge, establishing as a matter of law that such an accusation was not grounded in even a probable cause belief. The elements of this crime, OCGA § 16-11-39, are far different from those of simple assault, OCGA § 16-5-20. Although the two charges grew out *19of the same incident and, in Remeneski’s theory, were “closely related” in that sense, they stemmed from different legal elements and from different facts essential to those elements.
Decided June 28, 1996 Alfred L. King, Jr., for appellant. Peters, Roberts, Borsuk & Taylor, R. Stephen Roberts, for appellee.The record contains conflicting evidence with respect to Remeneski’s truthfulness in relating facts upon which the prosecution for fighting words proceeded. The resolution of this conflict is for the jury. Martin v. Reitz, 152 Ga. App. 854, 856-857 (264 SE2d 305) (1980). So is the question of the lack of probable cause. OCGA § 51-7-43. See Perry v. Brooks, 175 Ga. App. 77, 78 (4) (332 SE2d 375) (1985) (non-precedential as to case but precedential as to cited principles).
The trial court should be affirmed.
I am authorized to state that Presiding Judge McMurray and Judge Smith join in this dissent.
“[A] directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); [cit.].”
The Supreme Court returned the case to this Court to determine whether there was probable cause to prosecute as to the other items in the charge.