dissenting.
Implicit in the majority’s statement of the case is a holding that Dr. Fletcher’s liability for negligence depends, as a threshold matter, on the fact that he or someone authorized by him to do so received notification from the answering service of Mrs. Ford’s calls. I agree fully with that holding, but being of the opinion that the evidence does not support a finding that Dr. Fletcher or an agent of his got the message, I must file this dissent to the majority’s judgment.
1. My first disagreement with the majority opinion concerns its recitation of testimony that “the Fords’ emergency message was dispatched to Dr. Fletcher along with ‘several other messages. . .’ ” That statement gives the erroneous impression that there was direct evidence that the message was given to Dr. Fletcher. Although the majority does partially explain in a footnote the inconclusiveness of the testimony cited, the erroneous impression remains. The answering service supervisor’s testimony made clear, however, that the witness had no way of knowing to whom the message was given. The witness did not testify that there were no indications on the message slip concerning the identity of the recipient of the message, only that she did not remember seeing anything on the slip at the time she reviewed it other than the stamps showing when it was received and when it was given out. The message slip itself is no longer in existence and there is no record of which answering service employees took in and gave out the message.
2. My next disagreement spans both divisions of the majority opinion. While I agree with the quotation in the first division concerning hearsay, I cannot agree that Mrs. Ford offered the testimony only for the purpose of showing that she received such a call, and not for the purpose of establishing that since someone returned the call for Dr. Fletcher, he or an agent of his must have gotten the message. If, however, Mrs. Ford’s testimony was offered solely to show that she got a telephone call, then the majority’s reliance on it in the penultimate sentence of its opinion is misplaced: the testimony cannot be ruled admissible for the limited purpose of showing that a telephone call was received, then used for the purpose of establishing the truth of the contents, i.e., that the caller was calling on Dr. Fletcher’s behalf.
That the unknown woman caller’s assertion that she called on Dr. Fletcher’s behalf has no probative value is established by the holding in Price v. State, 208 Ga. 695 (1) (69 SE2d 253) (1952): “The testimony of one person to a conversation had with another person over a telephone, in which the person testifying did not know the other person or recognize the other’s voice, had not at that time even heard the voice, and had never heard it since, and the identity of such other person is not established otherwise than by what was said in the con*670versation itself, is hearsay. . .”
Decided December 5, 1988 — Rehearing denied December 19, 1988 Allen & Ballard, William L. Ballard, Edward D. Flynn III, for appellants. Harold D. Corlew, for appellees.3. While tragedies such as the apparently preventable death of appellees’ son touch us all, our responsibility to the law requires that our decisions be made on the hard facts in the record before us. The pertinent evidence in the present case consists of Dr. Fletcher’s testimony that he did not receive the Fords’ message, that he had authorized no one to receive messages for him, and that he did not authorize anyone to call the Fords on his behalf; countered by the Fords’ evidence that they called their pediatrician’s office, that a message was taken by the answering service, that Dr. Fletcher was on call, that the Fords’ message was given out by the answering service, that no one remembers or can establish to whom the message was given, and that an unknown person who purported to be calling for Dr. Fletcher returned Mrs. Ford’s call.
Without establishing a relationship between the unknown caller and Dr. Fletcher, the Fords are left with no evidence other than that their message, intended for Dr. Fletcher, was given to someone whose identity has not been established, and that the call was returned by someone whose identity has not been established. Those facts are not inconsistent with Dr. Fletcher’s denial of receipt of the message.
When a movant for summary judgment produces, to establish a fact, the positive, uncontradicted testimony of an unimpeached witness, the opposing party’s production of circumstantial evidence which is npt inconsistent with the movant’s positive evidence is not sufficient to create a question of fact and prevent the grant of summary judgment. Fletcher Emerson &c. Co. v. Davis, 134 Ga. App. 699 (4) (215 SE2d 725) (1975); Helms v. Young, 130 Ga. App. 344 (2) (203 SE2d 253) (1973). See also Myers v. Phillips, 197 Ga. 536 (4) (29 SE2d 700) (1944). The direct, positive, and uncontradicted testimony of Dr. Fletcher that he did not receive the message and that no one was authorized to receive messages for him, countered only by the Fords’ showing that their message was given to someone whose identity is unknown, a showing entirely consistent with Dr. Fletcher’s testimony, demanded the grant of summary judgment to Dr. Fletcher. I would, therefore, reverse the trial court’s judgment.