¶1 dissenting:
¶2 I conceive that the primary meaning of “transaction” is the doing or performing of business. Cf. Bouvier’s Law Dictionary; Webster’s, and Standard Dictionaries. This necessarily involves the idea of mutuality — reciprocal dealing. Situations based on' reciprocation should be distinguished from those in which the parties are independent participants. In the latter group, the thing just happens — casually.
¶3 The statute (Code, 57-3-1) places a ban on testimony in respect of “any 'personal transaction or communication” between the interested party and a deceased- person. Beyond doubt a personal communication, being an interchange of thought, involves mutuality. And because of the terms “transaction” and “communication-- (both personal)''being used'together in the statute, 'disjunctively, *740 it would seem that the basic idea of mutuality1 impregnates the whole. No shade of meaning of any word in the quoted phrase can properly be said to embrace casual occurrences.
¶4 I think that those courts which have included within the term “transaction” all sorts of chance happenings have gone beyond the plain signification of the word and have given a strained meaning to the statute, with the result that what was designed to prevent certain evils has been made to foster others.
¶5 Therefore, it would seem that this Court went too far in Freeman v. Freeman, 71 W. Va. 303, 76 S. E. 657, in this holding: “The words ‘personal transactions or communications,’ within the meaning of sec. 23, ch. 130, Code (now 57-3-1), include every method whereby one person may derive impressions or information from the conduct, condition or language of another.” To illustrate: A man, alone, is carefully and lawfully driving his automobile on a highway when another automobile carrying a group of drunken rowdies collides with his. One of them is killed and his personal representative sues the lone driver. The survivors in the hoodlum car may all testify; the solitary driver may not. Where is the justice of such an absurd result? Why place a law-abiding person at such extreme disadvantage? The statute does not create any such consequence; it comes from judicial construction.
¶6 Another incongruity, as I understand the holdings which the majority adopts: In the supposititious case stated, the lawful driver, because he participated in the transaction, could in no event testify, but if he were not the owner but was accompanied by the owner who was later sued for damages, the latter could testify because he did not participate in the transaction. If the courts will but give to the phrase “personal transaction” its primary meaning, such inconsistencies will not be promoted.
¶7 Our statute, Code 57-3-1, carries the provision:
“Provided, however, That where an action is brought for causing the death of any person by *741 a wrongful act, neglect or default under article seven, chapter fifty-five of this Code, the physician sued shall have the right to give evidence in any case in which he is' sued; but in this event he can only give evidence as to the medicine or treatment given to the deceased, or operation performed, but he cannot give evidence of any conversation had with the deceased/’
¶8 This is emphasized in the majority opinion in justification of the interpretation given the statute. It is said that the plain implication from this proviso is that “ ‘personal transaction or communication’ includes transactions involving death due to negligence.” With all deference, I cannot accept this deduction. The relation between the physician and his patient is a contractual affair — a personal transaction. But for the proviso, the physician would be barred from testifying by the very terms of the statute. Hence, the necessity of the proviso. All of which is far afield from a casual transaction.
¶9 Therefore, I dissent. Judge Hatcher authorizes me to say that he concurs herein.