dissenting. I concur in the dissent of Judge Pannell, except that I cannot concede that the alleged res gestae statements made by the children are sufficient to make a prima facie showing by the defendant on the motion for summary judgment. I am of the opinion that such statements are solely for the jury to weigh and consider, and it alone may determine such statements to be prima facie sufficient if this be all the evidence before the court during the trial. If this is the meaning of Division 2 of Judge Pannell’s dissent, I am in complete agreement.
But the evidence submitted on the motion for summary judgment fails to negate every averment and claim of the plaintiff, particularly in that the lower court granted the motion upon evidence that is, to say the least, doubtful and hearsay. Apparently this hearsay testimony is considered an exception to the rule as being a part of the res gestae. This testimony is before this court as a part of depositions taken for the purpose of discovery. These "res gestae” statements as to the way the injuries occurred were allegedly made by the little boys who were burned to the ambulance attendant while riding in the back of the ambulance en route to the hospital, and to the physician attending the children upon their arrival at the hospital, all of which would be pure hearsay unless a part of the res gestae. One of these children is now deceased, and this of course involves another rule of law as to the use of statements by a deceased person who cannot testify. Further, statements that an injured person makes to his physician as to his injuries are sometimes admissible, but any statements that he makes as to the way and manner in which the injuries were caused or occurred cannot be given in the testimony by the physician. The statements were made at a place other than the place of injury, and these usually are not admissible. Roach v. Western & A. R. Co., 93 Ga. 785 (21 SE 67). The physician also testified in the deposition as to statements made to him a second time, some five days later, which would not be admissible as a part of the res gestae. It has been held by this court in Brewer v. Henson, 96 Ga. App. 501 (1) (100 SE2d 661) that statements of a *170patient to a physician which are not made under such circumstances as to be equivalent to spontaneous and involuntary explanations of present pain and suffering and "not in response to manipulation or manual examination or treatment are not admissible in evidence.” At page 502 of this opinion a number of decisions of the appellate courts are cited in support of this ruling. In Lathem v. Hartford Accident &c. Co., 60 Ga. App. 523 (3 SE2d 916) this court, after citing the hearsay rule that the very nature of such testimony shows its weakness, "and it is admitted only in specified cases from necessity,” held further (Hn. 3), that the declarations of a deceased person "should not be considered . . . where, when and how the accident occurred, but should properly be construed as being confined to such complaints, exclamations, and expressions as usually and naturally accompany and furnish evidence of a present-existing pain or malady.”
It is apparent that this entire case is based upon the testimony of an expert as to the cause of the fire and explosion; and the alleged res gestae statements of the deceased boy, and of the other boy, after the alleged injuries. Since the competency of the evidence is at least doubtful, it is for the jury to consider "how far its force is impaired by surrounding incidents.” Augusta Factory v. Barnes, 72 Ga. 217 (5a). At most, such res gestae testimony is not primary testimony but secondary in nature arising out of hearsay and afterthought. It presupposes a main fact, and, "it is left to the sound discretion of the courts what they shall admit to the jury along with the main fact, as parts of the res gestae.” (Emphasis supplied.) Mitchum v. State, 11 Ga. 615, 622. See also Southern R. Co. v. Brown, 126 Ga. 1 (5) (54 SE 911). Certainly, a case was never intended to be decided by the court on such hearsay testimony alone, so as to abolish the right of a jury to weigh such testimony along with the other evidence since "the weight to be given them [res gestae statements] is a matter for determination by the jury.” Rouse v. State, 135 Ga. 227 (2) (69 SE 180). (Emphasis supplied The depositions in this case have not negated the claims of the plaintiff so as to demand a judgment for the moving party as a matter of law. See Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442). I would reverse the judgment.