concurring specially.
While I concur in the judgment affirming the denial of the motion for summary judgment, I cannot agree with the majority’s conclusion in Division 1 that Mrs. Ford’s testimony concerning the telephone call from an unknown individual purportedly calling on behalf of Dr. Fletcher was admissible and probative. In this connection, I completely agree with Division 2 of Judge Benham’s dissent.
However, there is additional evidence in the record which makes it clear that Dr. Fletcher’s summary judgment was properly denied. Ms. Sharon Bryan, a corporate executive with the answering service, testified that after the incident she talked with Dr. Fletcher who told her that “he felt the situation was an unavoidable one.” More importantly, Dr. Fletcher stated to Ms. Bryan that “he had done everything he could as a doctor.” This is certainly some evidence of appellant’s involvement at the time of the relevant communications between the appellees, the answering service and the anonymous caller who gave medical advice. “[W]hile a party may not admit liability, as a mere conclusion of law, where the facts positively show the absence of any liability [cits.], a party may admit the existence of facts which would give rise to liability.” Rossville Fed. &c. Assn. v. Ins. Co. of N. America, 121 Ga. App. 435, 440 (2) (174 SE2d 204) (1970). This admission against interest by Dr. Fletcher is some evidence of his having received the message and, therefore, it was not error to deny the motion for summary judgment.
I am authorized to state that Chief Judge Birdsong joins in this special concurrence.