S.A.V. v. K.G.V.

RENDLEN, Judge.

. This appeal concerns Missouri’s longstanding rule of interspousal immunity for tort actions, discussed at length in Townsend v. Townsend, 708 S.W.2d 646 (1986). This case differs from Townsend in that appellant charges her husband with negligence as well as an intentional tort. We now decide if spousal immunity should continue as a bar to negligence actions or whether it too should be removed as we have done for the intentional tort in Townsend. For reasons hereinafter discussed we hold that the archaic doctrine of spousal immunity is no longer available as a bar to negligence actions and the cause is remanded for reinstatement of plaintiffs (appellant’s) petition.

The trial court dismissed appellant’s petition against respondent in which it was alleged that during the marriage, respondent contracted herpes praeputialis and transmitted the disease to appellant. Appellant’s three-count petition alleges that respondent willfully, recklessly and negligently transmitted the disease to appellant without informing her of his infection. Count III concludes with the allegation “[t]hat [d]efendant’s negligence ... is the proximate and direct cause of [p]laintiff’s contracting this disease, herpes, and thereby suffering injury and damage....”

The trial court ruled that the action was barred by the doctrine of interspousal immunity and the Court of Appeals-Eastern District transferred the cause after opinion to this Court for reexamination of existing law. Rule 83.01.

In Townsend v. Townsend, we considered § 451.290, RSMo 1978, as well as earlier case law and found that the rationale for the previously controlling decision of Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382 (1915), was no longer persuasive, nor valid. We held that Rogers and subsequent cases following the Rogers rule were no longer to be followed.

It is generally argued that total abolishment of interspousal immunity will clog courts with trivial suits, disrupt family harmony and result in collusive claims. Respondent in the present case is particularly concerned that tort claims will be duplica-tive of property settlements and judgment obtained in dissolution of marriage proceedings.

The “flooding” of the courts argument collides with the requirement that courts must provide a forum to redress legitimate and compensable injuries. Further, that argument has been tested and apparently found wanting in thirty jurisdictions which have totally abolished the doctrine of inter-spousal immunity.1 Particularly instructive is a case decided by the Supreme Court of New Jersey which first curtailed the doctrine with respect to negligent operation of motor vehicles, Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970) and thereafter abolished the doctrine entirely. Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978). Not only was the New Jersey Supreme Court undeterred in expanding its earlier decision, but, after eight years of experience in an area where potential for fraudulent claims is said to be highest, that court found the “adversary system ... *653equal to the task of screening out fraudulent claims.” Id. 388 A.2d at 961.2

A similar argument is made that removal of the bar will lead to a rash of claims of the “unwanted kiss” and “rolling pin” variety.3 It cannot be said it is beyond the capacity of our courts to examine and on a case-by-case basis define or adjust the duty of care required between married persons to accommodate the “give-and-take” of married life. It seems remarkably inconsistent to argue that connubial bliss will be disrupted to the breaking point by a spouse filing a tort action and in the same breath argue against removing the spousal immunity doctrine because such couples might unite for purposes of collusive claims.

It is particularly important to note that the bar to interspousal tort suits has been curtailed in a variety of cases in Missouri during the last fifty years with no apparent ill effect. Actions have been allowed for antenuptual torts, Hamilton v. Fulkerson, 285 S.W.2d 642 (Mo.1955), and against a husband’s employer for the wife’s injuries based on acts of the husband in the scope of his employment. Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645 (1936). The potential for fraud and collusion was not allowed to bar such actions.4

Finally, respondent contends that dissolution of marriage proceedings between the parties affords appellant an adequate avenue of redress. While there are distinct differences between the division of marital property between spouses and awards of damages for an injury, to the extent that conduct of the spouses is taken into account in division of marital property pursuant to § 452.330.1(4), RSMo Supp.1984, the dissolution decree might be admissible in the subsequent tort action subject to usual constraints of relevance, competence and with a careful eye to questions of causation and speculativeness of damages. The same may hold true for the dissolution proceeding if that action follows trial of the tort claim.

In conclusion, we join the majority of our sister states who have taken this step before us. See generally Brown v. Gosser, 262 S.W.2d 480, 484 [3] (Ky.Ct.App.1953); Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70, 73 [3] (1962). Our holding today shall be applicable to all actions in which a final order, decree or judgment has not been entered as of the date of issuance of this opinion.

The judgment is reversed and the cause remanded to the trial court with direction to reinstate plaintiff’s petition.

HIGGINS, C.J., and BILLINGS, J., concur. BLACKMAR, J., concurs in separate opinion filed. WELLIYER, J., concurs in part and dissents in part in separate opinion filed. ROBERTSON, J., concurs in part and dissents in part and concurs in separate opinion concurring in part and dissenting in part of WELLIVER, J. DONNELLY, J., dissents in separate opinion filed.

. Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Idaho, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Washington, West Virginia, Wisconsin. See Renfrow v. Gojohn, 600 S.W.2d 77, 80-81 (Mo.App.1980); Annot. 92 A.L.R.3d 901 (Supp.1985).

. In automobile cases, "the full glare of truth may be the best antidote for fraud.” Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951, 961 (1978). “Insurance companies might in appropriate circumstances reveal their status in the case, treating the covered defendant-spouse as a hostile witness in order to attack credibility and show that the husband and wife may be scheming to gain a recovery against the insurance company." Id.

. These expressions are shorthand descriptions of those instances when a spouse allegedly subjects the other to minor physical abuse, possibly constituting trivial torts, and often were alleged as general indignities which, when accumulated, might be considered as grounds for divorce under the old “divorce” statutes. Section 452.-010, RSMo 1969 (repealed Laws of Mo.1973, p. 470).

. It is also interesting that Missouri’s legal system has functioned adequately without a Guest Statute, whose advent in other states has been in reaction to the possibilities for collusion inherent in the host-guest relationship.