dissenting. The controlling question as made by the record may thus be stated: Where a married woman, negligently driving an automobile in which her husband had no interest, injured a third person, and at the time of the injury the woman was not engaged in the business of her husband, nor was he present nor in any way associated with the automobile, the woman, or the injury, is the husband civilly liable for the tort ? If is not stated that the husband and wife were living in a state of separation at the time of the injury, and the question will be decided without reference to any such change of condition if it existed. To what extent the provisions of the Civil Code (1910), § 2997, relating to non-liability, under specified circumstances, for necessaries furnished the wife in cases of separation and the like, would affect the question, is not involved. It was provided in the first Code (1863, § 2.904) as follows: “Every person shall be liable for torts committed by his wife, and for torts committed by his child, or servant or slave by his command, or in the prosecution, and within the scope of his business, whether the same be by negligence or voluntary.” That Code was adopted by the legislature, and had the binding effect of a statute. Central of Georgia Railway Co. v. State, 104 Ga. 831 (supra). Subsequently the law commonly known as the married woman’s act provided: “That from and after the passage of this act all the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife, and that all property given to, inherited, or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband.” Acts 1866, p. 146. Other statutes have been passed enlarging the rights and liabilities of married women, but neither the act of 1866 nor other acts expressly or by necessary implication repealed the code section. The Code of 1868, § 2910, which was not adopted by act of the legislature, contained *795the above-quoted section, omitting the words “or slave,” and the punctuating comma appearing after the word “prosecution.” Section 3961 of the Code of 1873, and section 3961 of the Code of 1883, and sectioh 3817 of the Code of 1895 each contains the identical language and punctuation marks that were contained in section 3910 of the Code of 1868. The Code of 1895 was adopted by the legislature, and had the binding effect of a statute. Central of Georgia Railway Co. v. State, supra. While the Code of 1895 was in vogue this court, in Chastain v. Johns, 120 Ga. 977 (supra), construing and applying the said code section, held that “A father is not liable for a tort of his minor child, with which he was in no way connected, which he did not ratify, and from which he did not derive any benefit.” After that decision the Code of 1910 was adopted by the legislature, and had the binding effect of a statute. Central of Georgia Railway Co. v. State, supra; O’Berry v. State, 153 Ga. 644, 647 (113 S. E. 2); Baugh v. LaGrange, 161 Ga. 80, 84 (130 S. E. 69); Carmichael v. Citizens & Southern Bank, 163 Ga. 735, 740 (134 S. E. 771).
Section 4413 of the Civil Code of 1910 provides: “Every person shall be liable for torts committed by his wife, and for torts committed by his child, or servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary.” It will be observed that in the Code of 191ft" the language is identical with that contained in all the Codes except the first, and that the punctuation is identical with that contained in the Code of 1895, 'except that a comma is placed after the word “servant,” and a comma is omitted after the word “command.” This change of punctuation was probably made in view of the decision in the case of Chastain v. Johns, supra. This provision in the Code of 1910 supersedes the provisions in the former Codes. From the foregoing account it appears that this law did not originate in an act of the legislature, and became binding as statutory law by force of the statutes adopting the Codes of 1863, 1895, and 1910. It deals with three subjects: (1) liability of a person for a tort committed by his wife; (3) liability of a person for a tort committed by his child; (3) liability of a person for a tort committed by his servant. The first may be classed- separately from the other two, on the basis of merger of the wife’s civil existence in that of the husband by rea*796son of the marital relation. It is declared: “Her legal civil existence is merged in the husband, except so far as the law recognizes her separately.” Civil Code (1910), § 2992. Also, “If a tort be committed upon the person or reputation- of the wife, the husband or wife may recover therefor.” § 2994. There is no such merger of legal civil existence upon which to predicate the second and third liabilities, but there are so many marks of similarity in the legal reciprocal duties between parent and child and master and servant that they' may be reasonably classed together. In Griffin v. Russell, 144 Ga. 275, 278 (supra), it was said: “A Child, however, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the general principles -governing the relation of master and servant, or principal and agent.” Upon the principle thus stated it was held that the petition alleged a cause of action against a woman for a tort committed by her minor son by negligently injuring a person while driving her automobile “for the comfort and pleasure of himself and friends, who were riding with him by and with the consent of” his mother.
In Lashbrook v. Patten, 1 Duv. (Ky.) 316, a minor son, while driving his two sisters to a picnic in his father’s carriage, drawn by his father’s horses, and with his father’s approbation, all of the children being members of his father’s family, through negligence ran against the carriage of another, causing damage. The Court of Appeals said: “The son must be regarded as in the father’s employment, discharging a duty usually performed by a slave, and therefore must, for the purposes of this suit, be regarded as his father’s servant. The doctrine that masters are responsible for the injuries arising from the carelessness of their servants whilst in the master’s employment, and the discharge of their duties, has been so long recognized and abted on, that we scarcely deem it necessary to elaborate the reasons or recite authorities.” With the foregoing classifications in mind the lawmakers in framing the section of the code first declared, broadly and without limitation, liability of a person for a tort committed by his wife. Then follows liability for a tort committed by his child and tort committed by his servant, placing the two in the same class, with the limitation as to both that the tort must have been committed “by his command, or in the prosecution and within the scope of his *797business.” This view of the law was taken, though expressed in different language, in Chastain v. Johns (supra), where it was said: “At common law, the husband was liable for the wife’s torts, not alone because she could own no separate estate capable of being subjected, but also because in legal contemplation she had ■no existence apart from his, and consequently could do no- act that was not also his act. In Georgia, while the wife at present is, as to her property-rights, practically a feme sole, the fiction of merger of her legal existence into that of her husband, so pleasing to masculine vanity, is still maintained, at least in part; for while she may own and control property, barter and trade, and sue and be sued, in entire independence of her lord and master, she may yet do no wrong that is not chargeable to his account. Between parent and child, however, the law has never recognized a merger of existence.” It is now insisted that the limitation above quoted from the statute be construed as extending also to the declared liability for a tort committed by the wife. That would be a strained and unwarranted construction. If the legislature had intended that section 2904 of the Code of 1863 should be no more than an embodiment of the common law, it would not have included the word “slave.” It is also significant that after abolition of slavery in this State in 1865 and the passage of the “married woman’s act” in 1866, the word “slave” was omitted, while the word “wife” was retained in the corresponding sections of the subsequent codes. The change shows that in adopting that part of the Codes the legislature considered those matters. If it had been intended to make a change as to liability for tort of the wife on account of passage of the married woman’s act, the section as to that matter would have been changed, as it was changed with regard to tort of a slave. The Code of 1910 was adopted after all the acts of the legislature extending powers of married women except those relating to suffrage and the power to hold office, and those are not such as by necessary implication would amend or repeal the aforesaid section. Civil Code (1910), § 6445. The fact that a statute might not be reasonable, or, having originally been reasonable, the reason of its passage has ceased to exist, is a matter to be addressed to the legislature; and where a statute has been constitutionally enacted and stands unrepealed or modified by legislative enactments, the courts are without authority to repeal or modify *798it. When the question of whether a husband was liable for the tort of his wife was under consideration before the court of Appeals, construing the Civil Code (1910), § 4413, Judge Jenkins very aptly said: “It will be noted, . . that it [the code section] does not say (as it would have been easy to say had such been the intention) that every person shall be liable for torts committed by his wife, child, or servant by his command, etc., but what it does is first to lay down the common-law rule, complete within itself, that ‘ every person shall be liable for torts committed by his wife/ and tlien to add the. qualified liability, ‘for torts committed by his child, or servant, by his command/ etc. It does not seem that it can possibly be said that under any reasonable construction the limitation must necessarily be taken to apply to the first clause pertaining to torts committed by the wife. Supplying the words which the reasonable import of the statute would seem to require, it would read as follows: ‘ Every person shall be liable for torts committed by his wife, and (every person shall be liable) for torts committed by his child, or servant, by his command, etcd By thus supplying the words which it seems must necessarily be taken for granted, the meaning and intent of the section appears plainer.” Griffin v. Miller, 29 Ga. App. 585, 586 (116 S. E. 339). Construing the statute as indicated, a husband is liable in this State for a tort committed by his wife in the circumstances first hereinabove stated. The statute seems to be far-reaching, unadjusted to conditions existing under present laws of this State, and unwise; but it is so written, and it will require legislation to change it. The courts can not make it otherwise by interpretation. There is great conflict of authority in other jurisdictions on the subject of liability of a husband for a tort committed by his wife, as shown by the majority opinion (see 20 A. L. R. 525, 27 A. L. R. 1214, and citations in annotations). The decisions in those jurisdictions have not been overlooked, but specific reference to them has not been made, because the statute in this State is deemed controlling.