The opinion
SMITH, Justice
(dissenting).
I respectfully dissent. The effect of this decision is to deprive Patricia Ann Grant of her cause of action for damages resulting from injuries sustained in a one-car accident. The car was being driven by Edward Suggs. Suggs was killed in the accident. Patricia Ann Grant is the only known witness to the accident and the only person in a position to testify to the pleaded facts which, if found by the trier of the facts to constitute gross negligence and a proximate cause of the accident and resulting injuries, would support a judgment in her favor. The trial court sustained a motion in limine, thereby prohibiting Patricia Ann Grant’s testimony. Not only that, the trial court withdrew the case from the jury and rendered judgment for the defendant. This action of the trial court was prompted solely by the contention that the provisions of Article 3716, the “Dead Man’s Statute,” had effectively killed Patricia Ann Grant’s cause of action. This Court now holds, in effect, that in a guest statute case where a plaintiff seeks through her testimony alone to present her cause to a jury, she must bow to a statute which has been classified as being one “deplorable in every respect” ; that she must forego her constitutional right to a fair and impartial trial before a jury of her peers; that she must suffer the injuries inflicted upon her without an opportunity to test her credibility as a witness before a trier of the facts; that it is more important to protect the estates of the dead than the rights of the living; that it is presumed that Patricia Ann Grant would more likely swear to a falsehood than to the truth.
It is not my purpose here to advocate a repeal of the statute. Such is not necessary. The statute should have no application in a case such as this. This Court, as late as 1961, in the case of Harper v. Johnson, 162 Tex. 117 , 345 S.W.2d 277 , declared that the statute should be strictly construed. There the Court was called upon to determine whether or not, under Article 3716, a surviving driver of an automobile-truck collision would be permitted to testify both as to his own actions and those of the decedent. In that case the collision was between strangers. This Court, in holding the testimony admissible, based its holding largely on the fact that two strangers driving motor vehicles approached and collided with each other. We held that the collision was not a “transaction” within the meaning of the statute. It is strange, indeed, to say that an incident becomes a “transaction” within the meaning of the statute merely because the survivor and the deceased were friends and riding in the same vehicle. The Court in Harper v. Johnson recognized an exception where the parties were strangers. We said:
“With this situation in mind, we will give the greatest import to the fact that the Dead Man’s Statute has the effect of limiting the evidence in a judicial hearing to something less than all the available evidence. Justice will not ordinarily prevail where only a part of the available evidence affords the only support for the judgment rendered.”
In this case, the parties were friends rather than strangers. Patricia Ann Grant *751 was riding as a guest in the Suggs automobile, and for these two reasons a “transaction” has evolved, and instead of justice prevailing — justice has been shipwrecked. A stranger when he knocks at the door of justice is received, but the door is closed to a friend in a like situation. Justice has not prevailed because, under the holding of this court, there is no available evidence to support a judgment for Patricia Ann Grant. We said in Harper v. Johnson that:
“To hold that the term 'transaction’ includes such an event as an automobile collision is to disregard the customary, common and ordinary meaning of the word, and we believe that such a holding would be a judicial extension of this exclusionary rule far beyond what the Legislature intended.”
It now develops that this exception was only meant for strangers. The present holding renders absolutely meaningless Article 3714, Vernon’s Annotated Statutes, adopted in 1871, which provides: “No person shall be incompetent to testify on account of color, nor because he is a party to a suit or proceeding or interested in the issue tried.” The Court has effectively restored the English Common Law rule which came into existence around the year 1500 and prevailed for over 400 years. That rule no longer prevails in England. Apparently when declared, it was thought that the best and surest method of securing the truth was to exclude certain classes of witnesses who were apt to swear falsely. It was thought that all persons who had a primary interest should fall within the class to be excluded from the privilege of giving testimony in court. In Harper v. Johnson, the testimony was given by parties who had a “primary interest” in the outcome of an action for damages as the result of an accident involving an automobile and a truck. We held the testimony was admissible. In the present case a person with a “primary interest” and one automobile are involved. We hold that the survivor shall not testify. We hold on the one hand that in the light of “probable legislative intent” the statute was not intended to bar a stranger from testifying, but on the other hand it was probably the legislative intent to forever seal the lips of a friend of the deceased.
In the present case the trial court, with full knowledge that without the testimony of Patricia Ann Grant her case would surely fall, sustained an objection of counsel for the administrator of the Suggs estate based on the ground that the questions propounded to Patricia Ann Grant and her answers thereto as shown in a bill of exception concerning the accident, had been prohibited by the court’s previous order sustaining the administrator’s motion in limine. A concept of justice which excludes the right to present a perfectly good cause of action to the courts for determination should not prevail. The holding here is completely out of harmony with the Texas Constitution, Article I, Section 19, Vernon’s Ann.St., which provides that: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” There must be read into every valid statute the rights given citizens under our Constitution. Failure to do so renders the statute void and it should be so declared. Rather than deprive one citizen of due process, it would be far better and justice would more likely prevail in all automobile collision cases if this Court would clearly hold that the statute does not apply. The testimony of either party, regardless of whether or not other testimony is available, should be admitted under the ruling of the Court. This Court in Harper v. Johnson went part way- — -now, in this case, in the interest of justice, we should go all the way, but leave the repeal of the statute to the Legislature. I reiterate that it is not necessary in this case to declare the statute void. This Court can just as logically declare that the factual situation here presented is no more a “business *752 deal,” or “acts involving’ buying and selling,” or “transactions on the exchange” between the parties involved in the one-car collision than it was in Harper v. Johnson, wherein strangers and two motor vehicles were involved.
I would reverse the judgments of both the trial court and the Court of Civil Appeals, and remand the cause to the trial court for a new trial.