¶1dissenting.
¶2To reach the correct result in the case sub judice, some fundamental understanding must be had of two rules of law. Monson v. Brown, 163 Ga. App. 42 (292 SE2d 486) has been chosen by the majority to represent the rule that an offer to pay the medical bills of another constitutes an admission of liability. An alternative rule, that activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should not be considered as an admission of liability, has been chosen as the prevailing rule by the majority and supported by several recent citations of authority, the most recent being Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2) (416 SE2d 127). Are we really dealing with two separate rules of law here or has one supplanted the other over time? Certainly the latter is suggested by the language of the majority opinion.
¶3However, in my view, this is where the majority has taken the wrong turn in analyzing the case sub judice. Not only are both of these rules of law correct and still viable, they have existed side by side for many years. In other words, they are not mutually exclusive. For example, the rule chosen by the majority can be traced back many years before the decision in Monson. See Rape v. Barker, 25 Ga. App. 362, 363 (103 SE 171); Dougherty v. Woodward, 21 Ga. App. 427, 430 (94 SE 636). And there are cases which acknowledge the need to choose which of these alternative rules governs a given set of factual circumstances. Utz v. Powell, 160 Ga. App. 888, 890 (2) (288 SE2d 601). There may even be said to be a third side to this dilemma posed by offers to compromise. OCGA § 24-3-37; Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (2), supra.
¶4The proper issue in the case sub judice involves defining the *697boundaries between these rules and determining which if any is controlling. The majority, by discarding one or more of these alternatives, has pre-determined its conclusion.
¶5In my view, a jury issue is presented in the case sub judice as to whether Vigh’s offers to pay medical expenses or some portion thereof were an admission against interest of liability for the incident or an expression of sorrow or sympathy. Vigh’s testimony as to his intent may have been probative evidence in support of the conclusion reached by the majority, but unlike the majority I do not see it as being uncontroverted.
¶6I would hold, consistent with this Court’s decision in Monson, that Vigh’s offers to pay medical expenses constitute an admission of liability and that evidence of this controverts Vigh’s testimony as to his intent. The resulting genuine issue of material fact should be submitted to a trial jury.
¶7The common thread which joins the cases relied upon by the majority, and others in which a post-incident statement is held as a matter of law to be an expression of benevolence or sympathy and not an admission of liability, is the existence of some circumstance contemporaneous with the statement which demands a finding of such a benign intent. In Deese, intent was shown by the injured party’s own testimony concerning a plea to an investigator that because her disability entitlements had expired there would be no Christmas for the children. Both Rosequist v. Pratt, 201 Ga. App. 45 (410 SE2d 316), and Steverson v. Eason, 194 Ga. App. 273 (390 SE2d 424), relied upon by the majority, involved offers made in extreme proximity to the time of the underlying incident, that is on the day following the incident in each of these cases, while in the case sub judice the offers were not made until several days later. See also in this connection Rape v. Barker, 25 Ga. App. 362, 363, supra, in which the offer was made on the day following the incident. In the case sub judice, there is no evidence which compels the conclusion reached by the majority. Indeed, I find no prior case of this type in which solely a party’s testimony after litigation has begun is held to compel a conclusion as to the nature of the intent underlying an offer to pay medical bills.