This is an action brought by a wife against her husband to recover damages for gross negligence in operating an automobile in which she was his guest and by reason of which she was injured for life. A demurrer to the petition was sustained. The petition was dismissed and plaintiff appeals. The particular allegations of the petition are set forth in the opinion of Mr. Justice Riner, and it is not necessary to do so here. He holds that a wife cannot, any more than she could at common law, sue her husband. I concur in his opinion in so far as holding that a wife cannot sue her husband in the ordinary action of tort in the absence of a policy of liability or indemnity insurance taken out by the husband for his protection and that of those whom he injures. If actions of that nature would not be the cause but the result of the disturbance of family harmony, they would at least have a tendency to increase ill-feeling and to prevent possible reconciliation. Nor do I see much, if any, particular benefit to a wife in permitting her to sue in such cases. If the tort is such that it is a cause for divorce, the financial benefit to the wife as a redress for the wrong may be and ordinarily would be adjusted in an action for divorce or separate maintenance. If the tort is not such as to be a cause for divorce, I can, generally speaking, see no particular advantage to the wife to transfer a sum of money to her own pocket from the pocket of her husband, ignoring the fact that in such case the action itself would have a tendency to upset the peace and concord between them. To make my position clear, it is proper, if not necessary, to state my view of the limitation of the rule already stated. It cannot, or ought *Page 235 not, apply when, as is probable in this case, and in many other cases which may arise, the husband is protected by liability insurance taken out for his protection and for the protection of those whom he may injure. In such case, the wife should be able to sue her husband, and she should not, in such case, be placed in a position inferior to that of strangers who are able to benefit by such insurance. It is stated in 30 Law Notes 105, in discussing suits between husband and wife that "every decision on either side has evoked a vigorous dissenting opinion." In view of this great diversity of judicial opinions on this subject, it is apparent, that unless we go back to fundamental principles, revise our premises and start afresh, we can come to no satisfactory conclusion herein. Experience has been the life of the law. Holmes, Common Law, 1. And unless present day realities are related to bygone traditions, the past ought not to dictate legal relations between parties. Rozell v. Rozell, 281 N.Y. 106,22 N.E.2d 254, 123 A.L.R. 1015. We should not lose sight of the principle, as distinguished from a rule, stated in Rhinehart v. Rhinehart, 52 Wyo. 363, 380, 75 P.2d 390, to the following effect:
"While certainty of legal rules is important, law is not absolutely static. It grows and develops as necessity arises and seeks to adjust itself to the needs of society. `Jurisprudence,' says Ulpian, `is the knowledge of things human and divine, the science of the just and the unjust.'' Dig. 1, 1, 10, 2. Constantly aiming, as the law does, at ideal justice, it cannot, in the absence of a positive legislative rule to the contrary, ignore changed conditions and proceed from premises which are no longer sound. The only doubt which can arise in any such case is as to whether or not, in view of the desirability of the certainty of legal rules, the change is sufficiently marked as to justify a departure from a former rule. If such conditions have clearly and markedly changed, the law must proceed from new premises consistent with the changes." *Page 236
Once upon a time, at common law, a wife could not sue her husband. Husband and wife were considered a unity; the personal property of the wife became that of her husband. If she recovered any judgment the benefit thereof belonged to him. That unity has long since been destroyed by legislation in this state and in every other state. Hence courts in denying the right of a wife to sue her husband have been compelled to resort to another reason why such suit should not be permitted. The personal immunity which protects the husband is based simply on the policy of preserving domestic peace and felicity. Kaccorowski v. Kalkosinski (Pa.) 184 A. 663, 104 A.L.R. 1267; Koontz v. Messer, 320 Pa. 487, 181 A. 792, 794. In other words, the denial of the right to sue is based on public policy. The same public policy is invoked in suits between a minor child and his parents, and in suits by a parent against his minor child, and even in other suits between close relatives. See notes, 31 A.L.R. 1157, 71 A.L.R. 1071, 72 A.L.R. 453, 123 A.L.R. 1020. Hence a suit by a wife against a husband stands on the same footing and is governed by the same principle as a suit by a child against his parent or parent against a child, and it has been held that a minor child may sue the parent in case of the existence of liability insurance or indemnity to protect the latter. Lusk v. Lusk, 113 W. Va. 17, 166 S.E. 538; Dunlap v. Dunlap, 84 N.H. 352,150 A. 905, 71 A.L.R. 1055; Worrell v. Worrell (Va.)4 S.E.2d 343. It is apparent that if the rule of these cases is sound, no reason exists why a wife should not sue her husband in case that he and the persons whom he injures are protected by a policy of liability insurance. What was said in Rozell v. Rozell, supra, which was a suit between brother and sister, is applicable here. The court stated:
"Legalistic doctrines and ancient traditions like those of identity of husband and wife and family unity *Page 237 between parent and child and other members of the household and intimate legal or social relationship between others as affecting the question of the propriety for allowing suit for personal injuries by one against another are and have been vanishing with the advent of modern means of transportation and the spread of insurance against liability of the wrongdoer and protection for the sufferer. We cannot bury our heads in the sand and ignore the new tendencies and conditions so notorious. Insurance as protection to the sufferer is now a matter of common knowledge."
In Lo Galbo v. Lo Galbo, 138 Misc. 485, 246 N.Y.S. 565, involving a suit between a father and an emancipated child, the court stated:
"I do not feel that, under present day conditions, particularly in reference to automobile accidents, the question of public policy, which has been the basis of the common-law rule in respect to this sort of actions, should longer be applied. It is a matter of common knowledge that a great proportion of owners of automobiles are protected against damages by insurance, and that in such case no question of public policy could possibly be involved (excepting only in cases of fraud in the action itself); and resort to the old common-law doctrine established in the aid of maintenance of family relationship would not, in automobile cases, be sound public policy, and might and usually would result in the defeat of the very purpose for which the rule was at common law maintained. Were the matter before me de novo, I would be in favor of the abrogation of the rule in its entirety, at least in automobile cases. A new condition has arisen through the use of the automobile where the balance has changed, and public policy urges a modification of this rule."
In Lusk v. Lusk, supra, the court stated among other things:
"But a different situation arises where the parent is protected by insurance in his vocational capacity. The rule followed in the Securo case (Securo v. Securo, 110 W. Va. 1,156 S.E. 750) concedes the commission of a civil wrong on the child by the parent, but palliates *Page 238 the wrong (in case of passive negligence) in the interest of parental discipline and control and of domestic harmony. A wise provision when so confined and where pertinent to the case. McCurdy, 43 Harv. L.R. 1079, sec. 5. But as was said in the case of Dunlap v. Dunlap (N.H.), 71 A.L.R. 1055: `The law does not make fetishes of ideas,' and we must not exalt this rule above ordinary common sense. A maxim of the law (and of the ages for that matter) is when the reason for a rule ceases the rule itself ceases (cessante ratione legis cessat ipsa lex.) There is no reason for applying the rule in the instant case. This action is not unfriendly as between the daughter and the father. A recovery by her is no loss to him. In fact, their interests unite in favor of her recovery, but without hint of `domestic fraud and collusion' (charged in some cases). There is no filial recrimination and no pitting of the daughter against the father in this case. No strained family relations will follow. On the contrary, the daughter must honor the father for attempting to provide compensation against her misfortune. Family harmony is assured instead of disrupted. A wrong is righted instead of `privileged.'"
In Dunlap v. Dunlap, supra, the court stated in part:
"The defense being based upon the proposition that there will be family trouble because of the adversary state of mind between parent and child, created by the prospective gain to the child at the expense of the parent, anything which shows that, to the knowledge of the parties, there is no substantial prospect of such loss, destroys the foundation for the defense. It cannot be concluded that a result will follow from a nonexistent cause. * * * The excuse being based upon the policy of the law to preserve family accord and parental authority, anything which demonstrates that the suit will not interfere with those matters proves a difference in kind. The distinction is as plain as that between the cases of the emancipated and the unemancipated. * * * It is suggested in argument, and in some of the cases wherein liability has been denied, that these suits would never have been brought if there had been no insurance. This is undoubtedly true, but the real significance of the statement has been disregarded. The fact *Page 239 that suits are brought under these circumstances only has, in and of itself, no bearing upon the issue whether a wrong has been committed. But it is of large significance as an answer to the claim that filial loyalty is not a sufficient protection from ungrateful action against worthy parents. Experience in the matter is perhaps still too limited to furnish reliable proof; yet the fact that there appears to have been no suits, save for malicious injuries, before insurance was known and used, coupled with the recent institution of actions for negligence where there is insurance, points with reasonable certainty to the answer to the prophecies of untoward results to follow any holding that the parent is accountable to the child. It shows that suits which would harass the parent, impair his authority, and disrupt the home, are not likely to be brought."
In the case of Worrell v. Worrell, (Va.) 4 S.E.2d 343, it appears that the statute required motor carriers to take out indemnity insurance, protecting passengers injured by negligence. The defendant was a motor carrier, who carried the insurance required by the statute. He was also the father of the plaintiff, his daughter, who was injured in a collision of her father's bus and a motor truck. The court quotes at length, with approval, from Lusk v. Lusk and Dunlap v. Dunlap, supra, and as held in those cases, permitted such action, stating in part that "reason is not only the life of the law, but the inspiration and glory of the law. As reason is affected by facts and circumstances, so are legal principles based thereon. If that were not so, the elementary and fundamental principle and aim of the law to provide justice and fair dealing would be hopeless of attainment."
The Supreme Court of Minnesota, in Strom v. Strom, 98 Minn. 427,107 N.W. 1047, held that a wife could not sue her husband for tort. In the later case of Kyle v. Kyle, 210 Minn. 204,297 N.W. 744, the court, having *Page 240 before it a case in which the husband had liability insurance, stated:
"We are not unmindful of the fact that the growth of the motor vehicle traffic since the decision of Strom v. Strom, 98 Minn. 427,107 N.W. 1047, has multiplied the hazards of life and limb to which all are exposed. This makes it necessary for every owner of such vehicle to carry insurance against loss occasioned by the negligence of the one he permits to operate the same. If such owner be married, no doubt he desires that his wife and children should be protected against his or his agent's negligent operation of his automobile. The suit against him and his insurer by his wife or child who has been injured by the negligent operation of his car would not tend to any disturbance in the family relation."
On account of the previous decision above mentioned the court added: "But these and other considerations are for the legislature." We have no such previous decision which would hinder us in now adopting a just rule.
Are these rules and principles sound? It has been held that the existence of liability insurance should not make any difference. Schneider v. Schneider, 160 Md. 18, 24, 122 A. 498,72 A.L.R. 449; Ellis v. Collins, 237 Mich. 175, 211 N.W. 88; 52 A.L.R. 1118; Lund v. Olsen, 183 Minn. 515, 237 N.W. 188; Turner v. Carter, 169 Tenn. 553, 89 S.W.2d 751; Norfolk Southern Ry. Co. v. Gretakis, 162 Va. 597, 600, 174 S.E. 43; but see Worrell v. Worrell, supra. In Luster v. Luster (Mass.) 13 N.E.2d 438, the court did not pass upon the question with finality, though intimating that the rule of the cases just cited should apply. That rule is best stated in Ellis v. Collins, supra, by the Michigan court. The court said, after stating the rule that a child should not sue his parent:
"Plaintiff's counsel recognize this as a rule of the common law, but they argue that modern business *Page 241 methods have so changed with the coming of the automobile and the insurance thereon that the common-law rule should be modified to allow minors to recover against their father for torts, inasmuch as insurance companies promise to reimburse the insured for any judgment gotten against him for injuries caused by the automobile. Perhaps there is a spice of good sense in this, but, if the rule is to fade away because the reason is gone for its existence, what will we say as to boys who are injured while working on farms or in industrial plants, by reason of the negligence of their fathers? In these cases there is as much need of the common-law rule as there ever was. If this rule is to go out or be modified we think it should be done by the legislature rather than by us."
It may be noted that the court thought that if the action by a child against his parent were allowed in cases of the existence of liability insurance it should be allowed in all cases. But why? In West Virginia, as we have seen, the action is allowed in case of the existence of such liability insurance. It is not allowed where no such liability insurance exists. Poling v. Poling, 109 W. Va. 705, 179 S.E. 604. That is at least logical. The reasoning of the Wisconsin case is based on a fallacy. The court assumed as an incorrect premise that no action lay merely because it was one by a child against his parent. It completely lost sight of the principle upon which the rule is based, namely, that domestic tranquillity should not be disturbed. Clearly, an action which is calculated to disturb the peace and harmony of a family is as distinct from the action where that is not true as day is from night, and it is apparent, as already mentioned, that where laibility insurance exists to protect against accidents no disturbance of such peace and harmony can arise by attempting to collect on the insurance. It is not actually necessary to take new premises in such case and start afresh. All that is really necessary is not to start from incorrect premises and not to forget the old premises, or foundation, *Page 242 namely, that in cases in which domestic peace and tranquillity is disturbed or a tendency exists to that end, no action will be allowed. But that is no reason whatever why an action should not be allowed to recover on an insurance policy paid for and taken out for the express purpose of protection and in which no danger exists which is at the basis of the disallowance of such actions. It is not the existence of insurance which creates a cause of action in such case, as suggested by the able court in Luster v. Luster, supra. The cause of action is created by the wrong against the plaintiff, and a remedy should exist for that wrong, unless public policy forbids it, as is the case where domestic tranquillity is disturbed. When insurance exists, no public policy forbids such action, and the general rule should apply that for every wrong there is a remedy. 1 C.J.S. 969; Rozell v. Rozell, supra. In other words, the relationship of husband and wife constitutes a defense, exception or bar, in the ordinary action in tort, on the ground of public policy. It should not be a defense, exception or bar in cases in which such public policy has no basis.
It is claimed that to permit actions in such cases would lead to fraud and collusion. That there is danger of that cannot, of course, be denied. But so far as we know, no right of action has been denied on that ground alone, though it has been stated that the relationship tends to affect the credibility of the parties. Kalamian v. Kalamian, 107 Conn. 86, 139 A. 635. To deny the right to bring such actions upon the sole ground of the possibility of fraud and collusion would require the denial of a right of action in many other cases where it has been allowed. In Schubert v. Schubert Wagon Co., 249 N.Y. 253, a wife sued the master of her husband for injuries sustained while riding in the defendant's car, driven by plaintiff's husband. A recovery was allowed, although the master might be able to *Page 243 recover over against the husband. In such case the danger of fraud and collusion existed, just as in a case like that at bar. Danger of fraud and collusion would exist in actions brought by a brother against his sister, between an emancipated son and his father, between grandparent and grandchild, or even between intimate friends, — all of which actions have been allowed. Rozell v. Rozell, supra. As remarked by the writer in 30 Law Notes 166, "A man pays for insurance to indemnify any person whom he injures by his careless driving. What is the inequity of construing that provision to extend to indemnification of his wife thus injured?" And the Supreme Court of Oklahoma stated in Courtney v. Courtney, supra:
"A man pays for insurance to indemnify any person whom he injures by his careless driving, and if it is intended to except his wife from such indemnification, such intent can very easily be expressed in the contract. See 4 Wisc. L. Rev. 37; 30 Law Notes 165; 4 Fordham Law Rev. 475, 479. And as to the question of fraud, it has been very logically submitted that no such case should be saddled with the presumption of fraud ab initio. See 43 Harvard L.R. 1022, 1049, Kalamian v. Kalamian, supra (107 Conn. 86, 130 A. 635)."
Another reason just as persuasive as that already mentioned leads to the same conclusion. In a suit by a wife against her husband the latter is but a nominal — a technical — party, when he is protected by liability insurance. The real party defendant is the insurance company, and thus again the reason of the rule denying the right to sue utterly fails. It is stated in Luster v. Luster, supra, that "the proceeding is still in theory an adversary one, and for various reasons it may be such in fact." But that involves merely a matter of procedure. I do not think that courts lack the power to enforce a substantive right within its proper limitations, and confine recovery to the amount covered by the liability insurance policy. Nor do courts, in my *Page 244 judgment, lack power to enforce subsidiary rules which might apply in such actions, — for instance, that the jury should not be advised of the existence of insurance, — for all questions relating to that matter may in such a suit be determined by the trial judge alone.
My view, accordingly, would lead to a reversal of the judgment herein, if it appeared herein, that the defendant had liability insurance, protecting him and the persons injured by him. If the plaintiff in this case had left out the allegation, as she might have done, that defendant and plaintiff are husband and wife, the petition would, of course, have stated a good cause of action. In that case the relationship would have been a matter of defense, and if alleged in the answer would prima facie have stated a good defense in the absence of any explanation. But a reply, setting up the existence of such liability insurance, would have overcome the defense set up in the answer — it would have been a good reply. That, however, was not the course pursued herein. Plaintiff alleged the relationship of husband and wife, and in view of that fact embodied in the petition a prima facie defense. It did not mention the existence of liability insurance and for that reason did not state a cause of action, or, to speak more accurately, failed to show that the prima facie defense is not a bar to the action. When a demurrer is interposed, the sufficiency of the petition is ordinarily tested by the allegations contained therein, and not by any extraneous matters. 49 C.J. 423. Some of the courts have made an exception to the rule, and consider admissions which are made by the parties or counsel in the case. 43 C.J. 423. Perhaps other exceptions will be made from time to time as the justice of the case may require. We need not make any exception in this case, for the reason, as mentioned in Melvin v. Melvin, 8 Cal. App. 684, 97 P. 696, that the affirmance of the judgment herein will not bar the plaintiff from bringing another *Page 245 action in which the petition will contain the proper allegation in reference to liability insurance, which will nullify the prima facie defense raised by the relationship of the parties. The statement in the California case is made upon the theory that "it is hardly necessary to say" that when an essential element is omitted in the petition in the first action, it may be supplied in another action without danger of the application of the rule of res judicata. That rule is stated as the correct rule in 2 Black on Judgments (2nd ed.) Sec. 707; 2 Van Fleet's Former Adjudication, Sec. 306; Freeman on Judgments (5th ed.) Secs. 745-748; 1 Herman, Estoppel and Res Judicata, p. 322; 34 C.J. 794, 797, 798, 800, 823; 15 R.C.L. 986; 30 Am. Jur. 947; 41 Am.Jur. 470-471; Restatement of the Law of Judgments, comments (c) and (e) to Section 50. The cases are collected in Notes 13 A.L.R. 113 (d); 106 A.L.R. 444 (d). The rule is in consonance with the rules governing dismissals and non-suits. See, however, Price v. Bonnifield, 2 Wyo. 80; Hennesey v. Ry. Co., 24 Wyo. 305. The Hennesey case, based on the rule that what might have been alleged, should have been alleged, cites Kentucky and Illinois cases in its support. But the cases in these states support the general rule above mentioned. Cox v. Simmerman, 256 Ky. 583; People ex rel. v. R.R. Co., 307 Ill. 265. Nevertheless, I am not prepared to say that the Hennesey case, an action for negligence, did not reach the right result, particularly under the facts of that case. The court cites sections from Black and Van Fleet other than those above mentioned, and there is nothing in the opinion which indicates that the court meant to take a position contrary to that taken by these authors in the sections specifically mentioned above. The Bonnifield case is readily distinguishable from this case. The rule that all matters should be embraced in any one action, and ended in one, which might be embraced therein, applied in the Hennesey *Page 246 case, should play its proper part in juristic thinking, but, as often mentioned in connection with other matters would or might, if carried to its logical extreme, lead to undesirable results. The rule is a procedural one, and should not be judged by a standard of absolute invariability, since we should strive after the golden mean, even though we know that to be just beyond our reach. An assumption of the Bench that every member of the Bar is or should be one hundred per cent efficient is, possibly, even in this age of high intellectual attainments, not altogether conducive to reaching the ends of justice and might leave in its wake wrecks equalling in number the wrecks strewn along the paths of common-law pleading. In the case at bar, for instance, there can be no doubt that the lack of proper pleading is due to a justifiable and excusable mistake. That is apparent, when we consider the different opinions written in this case. However that may be, as I have already stated, a case involving liability insurance taken out by a husband to protect himself and those whom he injures is, in my judgment, a separate case, entirely distinct from one in which a husband is sued by his wife in an ordinary action of tort. A new issue is then brought into the case, which, as in the analogous case of Terry v. Hammond,47 Cal. 32, makes a different cause of action; and in such case, the husband is but a technical, nominal party. His position in such case is similar to one who is sued as a trustee of a third party, and who is sued in his capacity as trustee, in which case, he is a different party from the one in a case brought against him individually. 30 Am. Jur. 956.
By reason, however, of the fact that the petition contains a prima facie defense to plaintiff's action, without explaining and overcoming it, I needs must concur in the affirmance of the judgment herein, leaving plaintiff the right to bring another action, as herein explained, and permitting her to recover, if she can *Page 247 properly meet the conditions of the guest-statute of this state. In other words, I am in accord with Mr. Justice Kimball in so far that if such liability insurance as herein mentioned exists, she is entitled to sue.