*1 Moreover, merit. juror participate as the alternate in the de- jurors liberations and the indicated that would not be af- Ramsey fected has failed to demonstrate that harm resulted from friend’s conduct.

3. refusing charge The trial did not err OCGA State 16-13-30.2 is a lesser included offense of OCGA 16-13-30.1. § § Burgess, supports Ramsey’s 4. The record contention that improperly purported prior considered conviction supported by admissible evidence. Under our the best evidence of copy the conviction is certified conviction. 24-5-31. Thus, prosecutor’s prior conviction was prove Moreover, not admissible conviction. as the trial prosecutor’s court’s comments show the comments were considered arriving imposed Ramsey, the sentence the sentence must be vacated and the case for resentencing. remanded to trial court State, Sinkfield and vacated part. Johnson and affirmed Smith, JJ., concur. Wilson, Edwin J. for appellant. Charron, Attorney, Bernes,

Thomas J. Nancy District Debra H. Jordan, I. Pearlberg, Irvan A. Attorneys, ap- Assistant District pellee.

A95A0993. et al. NEUBERT v. VIGH et al. Judge.

Andrews, Appellant appeals grant from the state court’s of sum- mary judgment in favor appellee Vigh of Vigh’s the issue liabil- ity for damages injuries Neubert, appellant’s sustained Brad son, in a single appellee’s car collision caused Jason Vigh, minor son. Neubert’s sole enumeration of error is lower court’s grant of summary judgment improper was admitted lia- bility for injuries by Neubert’s son’s offering medical bills re- lated to the automobile accident. son, Jason, took car permission without while he

was out of town and while Jason was family. with another Jason had a single car in which passengers accident three were in- jured, including later, Neubert’s son Brad. Several visited injured help pay passengers offered their Neubert contends that admitted deductibles. summary judgment offers not

by making these and therefore was relies on Monson proper. which held medical bills consti-

tutes Monson overruled, expressly has not been more recent cases controlling. Recently, it is demonstrate that Court held that *2 im- “activity constituting offer of assistance made on the sympathy of benevolence or should not be considered as ad- an Deese v. Carroll liability.” Rosequist (1992); Further, Steverson App. 273 the court made held that statements by the that he responsible plaintiff’s felt for the death of plaintiff husband and that he would do fell whatever expressions the category sympathy within benevolence or and into category injury. the admissions for position relies two affidavits to her pay were impulse not made benevolence sympathy, but instead affi- constituted admissions of davit, Wanda Jackson states wife told Jackson that Vighs pay However, would Jackson’s son’s medical bills. a statement by Vigh’s wife as Vigh cannot construed and thus affidavit, is irrelevant. In the other Borgwat Vigh Robert states that responsible said he Borgwat’s would be for medical son’s bills. Under Steverson, this statement does not constitute an admission of either, but rather is an Fur- ther, deposition his pay stated that he offered to Neubert’s telling “out of deductible Karen problems me what her having money were and not the medical bills.” It should also be noted person that this not a case which the offering to help person with the in- directly was the volved the accident. The dissent stresses the amount time passed had Doug Vigh help made offer of and thus distin- from Steverson. guishes Doug and since accident, was out contemporaneous of town the time help Further, offer of possible. clearly the record shows that Doug Vigh intended to have as Jason medical deductibles accruing well all fines from the accident.

Therefore, since Neubert has come forward with no evidence tending to responsible show that felt that he was for the acci- negligently supervised dent because he had him allowing his child instrumentality,” access to a “dangerous properly court trial granted summary judgment. Birdsong, J., J., Johnson, Pope, P. P. Black- affirmed. Smith, JJ., J.,

burn Beasley, Ruffin, J., and concur. C. and concur J., specially. McMurray, P. dissents. Judge, Chief concurring specially.

Beasley, injured boy, and, mother of the representing herself as next friend, son, her boy contends that the father of the driving who was son, the father’s car at the time of supervise the collision failed to keys, failed to secure the car responsibility agreed family purpose bills. She does not invoke the doctrine. On the defendant summary judgment, father’s motion for compiled material facts and concluded that, negligent the father was not either in the supervision in securing keys of his son or him. from The facts regard are that the son was unlicensed and was forbidden car, drive the he was not at home while his were town, out of keys and that ignition, were the car was in garage, a locked and the son had to turn off the house alarm and open the garage using security get code order to the car. appeal,

On plaintiff challenge this recitation of the oppose facts nor conclusion of law reached Instead, based on them. she contends genuine there are *3 issues of material requiring fact to decide whether the father’s actions and words following the accident constituted an admission of liability which would sustain a verdict separate her favor. On this point, the trial court had concluded that facts con- cerning post-collision reaction of the defendant in the circum- not, stances be found constitute an admis- sion liability. of appellant

Thus would have us hold that even where there is no legal liability, a may legally be held agrees liable pay. authority There is position. no An has efficacy only if liability. none, there is If there is then the state ments of the alleged tortfeasor merely expressions constitute sym pathy, benevolence, acceptance or an of moral responsibility. The lat ter, which equate requirements with the narrower of legal liability, here, seems to be the intention could find the father’s acts and words were intended purpose — sympathy or benevolence even an admission of A jury would be needed to make a finding credibility based on the of the witnesses weight and the of the Page, evidence. White v. The Front (213 32) (1975).1 App. 133 Ga. 749 SE2d Cf. v. 201 1 My quarrel Brown, (1) (292 App. with Monson v. 42 163 Ga. SE2d is that implied the court held that defendant’s efforts and statements constituted an 696 (1) (410 316) (1991);

Ga. 45 App. SE2d Steverson v. 424) (1990); App. Powell, 273 SE2d Utz 890 (2) (288 these three the circumstances were such that the court could conclude as matter 2 liability.* pos statements were not admissions of But the first three legal consequences, sibilities would have no fourth is fore appellant closed in this has case court’s duty conclusion that there was breach no father. Judge am special authorized state Ruffin concurrence.

McMurray, Presiding Judge, dissenting.

To reach the correct result the case sub funda understanding mental must had of two rules of Monson v. law. App. Ga. 42 has been chosen the ma jority represent rule the medical rule, another constitutes an admission of An alternative activity constituting a offer assistance made on the im or sympathy of benevolence should not be considered an ad has been chosen prevailing as the the ma rule jority supported by authority, recent citations the most being recent Deese v. Carroll (2) (416 127). really separate we dealing Are with two rules supplanted

of law here Certainly over time? suggested by latter language majority opinion. of the majority this is where the taken the wrong analyzing judice. turn sub Not are both of viable, these rules of law correct and still have existed side many years. words, they mutually side for In other are not exclusive. For example, the rule can chosen be traced back many years decision Monson. See 171); Dougherty Ga. Woodward, SE SE acknowledge And there are cases which need governs given to choose which of these alternative rules set Powell, factual circumstances. Utz v. There even be said to be a third side to this dilemma

posed by 24-3-37; compromise. v. Carroll Deese *4 City County Hosp., (2), supra. proper judice

The in defining issue the case sub involves question, admission of Whether it did or not should have been treated as a merely court left the factfinder the ultimate issue of ruling City County Hosp., in The Deese Carroll investigator is built on the unstated conclusion that the action of the liability constitute an admission in as matter of law the circumstances of that case. determining which is con- boundaries between these rules and of these alterna- majority, by discarding one or more trolling. tives, pre-determined its conclusion. presented judice

In in the case sub as to issue is portion thereof Vigh’s expenses whether offers to or some against interest of for the incident or an were an admission expression testimony as to his intent Vigh’s of sorrow or probative have of the conclusion been evidence majority, reached but unlike the do not see it as being uncontroverted. hold, Monson,

I would Court’s decision consistent with this expenses constitute an admission of testimony and that evidence of this controverts as to resulting genuine intent. The issue of material fact should be sub- jury. mitted to a trial upon by

The common thread which cases relied ma- jority, and others which a is held as a mat- ter of law to be an and not is the existence of some circumstance contem- poraneous finding with the statement which demands a of such a be- nign Deese, In intent. injured party’s intent was shown own testimony plea investigator to an that because her disa- bility expired entitlements had there would be no Christmas for the 316), children. Both 424), and Steverson v. relied upon by majority, proximity involved offers made extreme the time of underlying day following is on the incident each of these judice while the case sub the offers were not made until later. See also this connection 362, 363, supra, in which the offer was day made on following incident. the case sub there is no evidence compels which majority. conclusion reached Indeed, I find no type solely party’s case of this testi- mony litigation after begun compel is held to a conclusion as to the nature of underlying the intent medical bills.

Silfen, Segal, & Fryer, Fryer, appellants. Mills Keith E. Alembik, Callner, Banick, Franchi, Fine & G. Michael Janet L. appellees.