dissenting: I am of opinion that tbe deposition is incompetent evidence in tbis case, for these reasons:
1. Tbe parties to tbe two actions were different.
2. Tbe causes of action were different.
3. There was no privity of interest between tbe parties to tbe first and second action.
4. Tbe cause of action for wrongful death of plaintiff’s intestate did not exist when deposition was taken in first action.
5. That deposition was never opened or ordered to be admitted in evidence in tbe first action.
In the case of Murphy v. R. R., 31 Hun., 358, which was an administrator’s action for injuries causing death, tbe Court, in ruling out similar testimony, said:
“Tbe deposition of tbe deceased, taken in an action prosecuted by him in bis lifetime, was not competent evidence in this action. That- action terminated with tbe death of the plaintiff therein, and all interlocutory proceedings went down with it, and are not saved by section 881 of tbe Code of Civil Procedure. While tbe plaintiff is tbe personal representative of tbe deceased, tbe action is prosecuted for tbe benefit of those who do not claim under him, but is an original cause of action that- did not exist in tbe lifetime of tbe deceased.”
In the case of Metropolitan Street Railway Co. v. Gumby, 99 Fed., 192, it was held by the Circuit Court of Appeals for tbe Second Circuit that testimony in an action by an infant claiming damages for bis pain and suffering from an injury is not admissible (the-witness having died in tbe meantime) in a subsequent action against tbe same defendant by tbe infant’s mother, claiming damages for loss of bis services, there being no privity between tbe plaintiffs.
*242The opinion in that case was very able and exhaustive, citing and distinguishing many authorities reliéd on in favor of the admission of the testimony, and quoting from many others holding contra, and is, therefore, instructive.
To same effect are Nelson v. Harrington, 1 L. R. A. (O. S.), 719; Miller v. Gillespie, 54 W. Va., 462; 6 A. and E. Pl. and Prac., 579.
In the case of Oliver v. Louisville and N. R. Co. (Ky.), 32 S. W., 759, it was held that in an action by husband and wife for personal injuries to the wife, depositions taken in a former action by the husband against the same defendant, for loss of services of the wife, caused by the same accident, were inadmissible, though they related wholly to the character of the injury and the manner in. which it was received, the Court saying:
“And, although the depositions referred to relate wholly'to the character of the injury received by her (the wife), and the manner in which it was done, and are, therefore, pertinent to the question of legal liability, as well as measure of damages, in each action, still the personal ‘injury, if the result of the defendant’s negligence, constituted two distinct causes of action, for one of which he (the husband) could alone sue, and for the other of which she (the wife) might have sued alone in case of his refusal to join with her. And while reason for the rule mentioned does not exist to the same extent as if there had been different occurrences or transactions, we can very well see how disregard of it by the court might have taken defendant by surprise and deprived it of the advantage of developing, on cross-examination, admissions and confessions of the wife it was not permitted to show in other suits. Moreover, defendant could not be legally deprived of an opportunity afforded him by enforcement of the rule, to again cross-examine the witnesses.”
I admit there are authorities cited in the majority opinion that hold the deposition admissible, but I am of the opinion that the conclusion reached by the courts whose opinions I have cited are more logical and convincing and better accord with our own decisions as to t]ie character of this action. Hood v. Telegraph Co., ante, 92; Broadnax v. Broadnax, 160 N. C., 432; Hall v. R. R., 146 N. C., 345; s. c., 149 N. C., 108.
*243It further appears that the deposition was never passed on, opened, or admitted in evidence in the first action. That being so, the deposition never became legal evidence in the first action, and the court, therefore, had no power or authority to permit it to be opened for the first time, upon notice given by the. plaintiff in the present action.
Me. Justice "Walker concurs in this opinion.