¶1dissenting.
¶2I must respectfully dissent from the majority’s opinion that the judgment be affirmed because no question of fact existed on the issue of probable cause to arrest appellant in this case.
¶3“Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground *18for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.” OCGA § 51-7-3. In this case the facts are unclear whether appellant’s actions justified his being asked to leave and subsequently being arrested for failing to do so. Although the manager testified in his deposition that appellant cursed at him and caused a disturbance on the premises, the cashier when deposed could not remember whether appellant used profanity or not, and did not testify that appellant was violent or that he disturbed anyone in the restaurant. Appellant contended that he did not use profanity, was not violent, and was only joking with the cashier about baked potatoes not being available when Watson intervened, told the cashier not to serve him, and asked him to leave. Appellant’s companion testified that it appeared that Watson had had a “bad day” before he and appellant arrived at the restaurant. The first arresting officer to arrive on the scene said that appellant was in the dining room eating when he arrived, but that the manager still asked the officer to get him to leave the premises, although there were no signs that a disturbance had taken place or was taking place.
¶4Contrary to the majority’s assertion, the fact whether Stover “engaged in a hostile verbal exchange with the assistant manager” is highly controverted; appellant says he did not, appellee says he did, and the other witnesses could not state an opinion one way or the other. Under the facts present in the record, more than one inference can be drawn as to whether or not sufficient grounds or probable cause existed for appellee Watson to proceed against appellant. Compare Nunnally v. Reveo &c., 170 Ga. App. 320 (1) (316 SE2d 608) (1984). Therefore, I would hold that the trial court erred in granting appellees’ motion for summary judgment and reverse the grant of summary judgment.
¶5I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.