(dissenting)-
When this case was decided I contented myself with a brief dissent as to the admissibility as res gestae, of the declarations of the deceased. The majority having per curiam undertaken to mend their hold, I take leave to mend mine; for I think it plain that by their efforts, instead of mending their hold, they have mended mine.
I find no fault whatever with the authorities the new opinion cites. Indeed, I embrace them; for they flatly hold that declarations which “constitute a narrative or statement of the past, such as that he had bought the land; * * * are not parts of the res gestas, and were improperly admitted.”
This is law not alone in Georgia, but everywhere. In Jones on Evidence, 4th Ed., Sec. 345, citing a multitude of cases, including Shadburn Banking Co. v. Streetman, 180 Ga. 500, 179 S.E. 377, 99 A.L.R. 854, it is said — “The admissibility of statements under the doctrine which is herein considered, depends upon their having been spontaneous or impulsive,”' — “A declaration that appears to be a narrative of a past occurrence may not be received in evidence.”
Here the declarations admitted were statements as to a past act or occurrence; that declarant had paid the premium on the policy. In addition, they were deliberately made, and there was neither spontaneity nor impulsiveness about them.
Of precisely the same nature and character as his other purported declarations as to the payment of the premium, which the majority agree with me should be excluded, these declarations are nevertheless held admissible as res gestae of his act of delivering the policy to his wife.
With deference, I submit that it is perfectly plain that a statement made at that time, by the deceased, that he had paid the premium, is clearly inadmissible, both because it is a statement or narrative of a past occurrence, and because the statement is in no sense a verbal act or fact constituting part of the litigated occurrence or transaction, which in this case was not whether he had turned the policy over to his wife, a wholly immaterial if not irrelevant matter, because nobody disputed it, but whether he had paid the premium. Jones, supra, Sec. 347; Wigmore, 2d Ed., Vol. 3, Sec. 1772-1774 and 1775.
The admission into evidence through the mouth of his wife, of this self-serving statement or narration by the deceased, as to a vitally important fact or transaction in the case, that he had paid the premium, is in my opinion, not only error, but error of the gravest and most prejudicial kind.
I respectfully dissent from the ruling that the declarations were admissible.