(dissenting).
I concurred in division in an opinion substantially similar to the principal opinion herein. However, after reargument of the case before the court en banc I have concluded to dissent.
If Mrs. Carpenter had lived and had brought suit to recover for her injuries, the statement attributed to her by defendant Grothoff would have been admissible therein as an admission against interest. The principal opinion so recognizes. However, Mrs. Carpenter died and her husband seeks to recover for her death resulting from those same injuries. The principal opinion points out that Mrs. Carpenter, of course, is not a party to the present suit and that under the doctrine of McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548, the cause of action by her husband is a new statutory cause of action and there is no privity between plaintiff Carpenter and his deceased wife. On that basis, the opinion concludes that the statement in question is not admissible as an admission against interest. It further holds that the statement is not admissible as a declaration against interest on the basis that the words spoken constitute an opinion as to fault rather than a statement of facts or deductions from other facts related by de-clarant in the same conversation.
We thus have, under the principal opinion, the anomalous situation wherein the husband, seeking a recovery for death caused by injuries to his wife, may prevent the introduction in evidence of the statement made by his wife at the time, although such statement would have been admissible against the wife in her own suit to recover for those same injuries. As a result, the husband has a greater chance to recover for the death of his wife than she would have had to recover for her own injuries.
The rule excluding such statement in a suit by the husband on the basis of absence of privity seems highly technical and neither just nor logical. I have concluded that we should not permit such a result. I would hold that where a deceased has made a statement which would have been admissible against him or her as an admission against interest in an action for personal injuries, such statement also is admissible against one maintaining- an action for death resulting from those same injuries, even though the death action is one created by statute. It seems to me that in this limited type of situation we could reasonably waive the requirement of privity. The husband really stands in the shoes of the deceased (even though the death action is created by statute). An alternative basis, of course, would be to hold that privity exists in such a situation.1
Accordingly, I would hold that the statement by Mrs. Carpenter made to Grothoff *386was properly admitted in evidence, and I would affirm the judgment.
. Some states do find privity even though the death action is statutory. This was recognized in McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548, 551. See, for example, Hovey v. See, Tex.Civ.App., 191 S.W. 606, and Georgia Railroad and Banking Co. v. Fitzgerald, 108 Ga. 507, 34 S.E. 316, 49 L.R.A. 175.