(dissenting).
The majority opinion holds that Vest, or his administratrix, is not such a party as acquired title immediately from Mrs. Nobel, and that the cause of action herein does not devolve from Mrs. Nobel, or her estate. I understand the opinion to hold that the cause of action devolves from 76 O.S.1951 § 5, and 23 O.S.1951 § 61. This conclusion is said to be in harmony with the decision reached in Olson v. State Farm Mutual Automobile Ins. Co., 252 Wis. 37, 30 N.W.2d 196.
76 O.S.1951 § 5, supra, provides, in substance, that every one is responsible for injuring another, whether wilfully or for want of ordinary care. 23 O.S.1951 § 61, supra,, provides the measure of damages for wrongful injury to another.
In my view it makes no difference whether the right to recover for wrongful injury stems from statute or common law. Vest.does, or did, have injuries. Those injuries came to him immediately from Mrs. Nobel. Having acquired his injuries from, her, he acquired his cause of action from her. Without injuries caused by her he would have no cause of action against her.
Vest’s right of action existed at common law, if that is important. See-par. 1 of the Syllabus in St. Louis & S. F. R. Co. v. Goode, 42 Okl. 784, 142 P. 1185, L.R.A. 1915E, 1141. Vest’s cause of action was revived after his death pursuant to the provisions of 12 O.S.1951 §§ 1051 and 1052. Under common law his cause of action would have died with him. St. Louis & S. F. R. Co., supra.
58 Ani.Jur. § 349, p. 206, is authority for the proposition that the Dead Man’s Statute “applies to an action in tort as well as to an action on contract.” Under that authority the Dead Man’s Statute would apply in this case.
The majority opinion cites the Olson case, supra, as authority for the proposition that the Dead Man’s Statute does not apply in this case “for the reason that the cause of action does not devolve from Mrs. Nobel or her estate.” The Olson case does not so hold. The Olson case is a wrongful death action and was brought by the widow, Mrs. Olson, in her own name, and for the loss she sustained by reason of the wrongful de'ath of her husband. In Oklahoma her action for wrongful death would have been brought under 12 O.S.1951 §§ 1053 and 1054. See St. Louis & S. F. R. Co. v. Goode, supra. The Olson case holds that a wrongful death action devolves from the wrongful death statutes and not from a deceased person. The rule there applied is expressed in 58 Am.Jur. § 349, p. 207, as follows:
“But such a statute (Dead Man’s Statute) does not apply to an action for wrongful death, since the decedent is not a party to such cause of action, and .the exception or proviso (the Dead Man’s Statute) has nothing to do with actions inter vivos.”
I am compelled to conclude that if the cause of action in this case was not acquired from Mrs. Nobel, then no one will ever be able to acquire title to a tort action immediately from a deceased person in Oklahoma. In other words, the Dead Man’s Statute, under the majority opinion, can never apply to a tort action in Oklahoma.
We should determine whether the transaction or communications involved herein is a “transaction” within the meaning of the Dead Man’s Statute. If our answer is in the affirmative, we should then determine whether defendant, has waived the incompetency of Vest’s deposition.
I therefore respectfully dissent.
I am authorized to say that WILLIAMS, V. C. J., concurs in views expressed herein.