dissenting.
1. Traditionally, the burden of proof in this kind of action has been on the plaintiff and prior to Ga. L. 1958, p. 693 (Code Ann. § 105-1005), malice and probable cause were not necessary ingredients. The 1958 *780Act was intended to make probable cause an affirmative defense with the burden of proof on the defendant. Isaiah v. Great Atlantic & Pacific Tea Co., 111 Ohio App. 527 (15 Ohio Ops. 2d 291, 174 NE2d 128, 86 ALR2d 430).
The defense of probable cause was not raised by the pleadings of the defendant. The proffered defense by the defendant in its pleadings and evidence showed only one defense and that was that the agent of the defendant did not arrest or detain the plaintiff. The very definition of probable cause, cited by the majority from Turner v. Bogle, 115 Ga. App. 710, supra, precludes the consideration of such a defense because the very existence of probable cause depends on the fact that the facts and circumstances surrounding the conduct of the person charged with the offense must have been acted upon by the person for whose benefit the probable cause defense was enacted.
The charges excepted to by the plaintiff were erroneously given by the court: (1) Because probable cause was not claimed or urged by the defendant, either as of the time of the trial or as of the time of the alleged detention. (2) There is no evidence that the defendant consciously acted on facts it considered probable cause at the time of the alleged detention. (3)- Even if there could be a determination from the facts and circumstances in the case that if the agent of the defendant had considered the question of probable cause (which is contrary to fact) he would have been justified in concluding that he had probable cause for the detention, neither the agent (nor the appellee) can at this stage of the game utilize the claim. And even though the agent did not need to reach the question of probable cause, because he testified that he did not in fact detain the plaintiff by force or coercion, the evidence, wholly circumstantial, is not sufficient to show that the agent of the defendant had probable cause to believe that the plaintiff aided and abetted Mr. Matthews in shoplifting. I think the court erred in overruling the appellant’s motion for a new trial.