DISSENTING OPINION.
ROBERTSON, P. J.In the result óf the majority opinion, except as to the holding that defendant, L. D. Pool, is not liable, I concur. The conclusion reached in that opinion as to his exemption is not, I think, justified by the decisions of the Supreme Court of this State. The general rule is recognized by the majority that in this State the husband is liable for the torts *37of his wife hut he is absolved in this ease, as it is stated, because the wife, in committing the wrong for which he is sought to be held, at the same time outraged and damaged him and violated a higher duty to him than she owed the plaintiff and that, therefore? to apply the rule would shock the sense of justice — ostensibly to defendant L. D. Pool. This postulate, I think, ignores the justice due the plaintiff.
In discussing the common-law liability of the husband for the torts of his wife, Judge Gantt, in Taylor v. Pullen, 152 Mo. 434, 439, 53 S. W. 1086, states that “so far no writer or court has as yet furnished satisfactorily all the reasons which may have influenced the adoption of the rule at common law, and until they are produced, certainly the courts cannot declare that all the reasons have ceased and thus abolish the rule by judicial decision.”
The opinion in Nichols v. Nichols 147 Mo. 387, 408, 48 S. W. 947, discusses the effect of the “Married Woman’s Act” (now sections 8304, 8308, 8309 and 8310, R. S. 1909) and .applies the principle that the expression in said section 8310, that the husband shall be exempt from all liabilities incurred by the wife before their marriage (which, as I understand, relieved the husband from some liabilities existing at common law), is in effect the exclusion from said Act of any other exemption from liabilities which existed at • common law. Further, in that opinion, in discussing the common-law reason for holding the husband accountable for the wife’s torts, it is said that because under that law the husband absorbed the wife’s property was not the chief reason, though that may have been sufficient, but a broader one existed which was that the husband possessed the power of control and therefore owed a corresponding duty to society for the conduct and actions of his wife; that this basis for his liability was not removed by legislative interference, and that so long as that reason remains, whether or *38not sufficient, it is for the Legislature and not the courts to change the rule. This opinion and the one in Flesh v. Lindsay, 115 Mo. 1, 13, 21 S. W. 907, are cited with approval in Taylor v. Pullen, 152 Mo. 434, 439, 53 S. W. 1086, supra.
The Supreme -Court in the Taylor case, refused to engraft any exception onto the rule that was not shown to be such as was known at common law, yet the majority opinion in the ease under consideration entertains- an exception on the theory, as I understand it, that no case has been presented where liability was fixed on similar facts. However, it may be suggested that in many cases, not necessary to collate here, where the husband has had to respond in damages for the torts of the wife, he has suffered pecuniary loss by reason of her acts in addition to the damages he was called upon to liquidate. Under the rule announced in the majority opinion, as I read it, if the wife in committing a tort also damages her husband he is by reason thereof exempted from liability conformable to the common law.
But, if the exemption recognized by the majority opinion should be said to be based on the assumption that the wife in committing a tort of the character here involved violates the marital contract, the reason for the common-law rule announced in the Nichols case, supra, based on his power to control and his duty to exercise such power, should not be overlooked. Must the plaintiff’s marital happiness be surrendered, her home ruined and the lives of her children blasted without recompense by reason of acts of the defendant’s wife, and the husband be exempted from the general rule of the common law in force in this State because in the commission of that wrong on plaintiff the husband of the guilty wife also suffered a wrong, but which might have been prevented by him, or, as the record discloses, which he has condoned? The defendant husband did not admit the guilt of his wife and *39ask for tie lhercy fie majority opinion gratuitously béstóws tipón iirü ai the' expensé o’f the plaintiff and iéí children.
A reading o’f tie English cases éited in tie majority opinion to tie proposition that the husband was not liable for necessaries furnished his wife Virile she was living away from him discloses that they are based on the idea of agency. Other cases may be found where such liability is denied on the theory that she has forfeited her right to support, of which the third party had notice, and for acts which the husband had not condoned.
It is evident to me that the exception made by the majority opinion is now for the first time engrafted upon the rule that holds the husband liable for the torts of the wife, which it is held in the Taylor case, supra, should not be done since it did not' exist at common law. One ground for the assertion that this exception did not exist at common law is that the reason for it did not then exist. The husband then .taking all of the wife’s property must of necessity have responded for all of her torts. However, because this situation no longer exists under our statute furnishes no reason, I think, for the exception made by the majority of this court.
Deeming the opinion of the majority in conflict with the decisions of the Supreme Court in the cases of Flesh v. Lindsay, 115 Mo. 1, Nichols v. Nichols, 147 Mo. 387, and Taylor v. Pullen, 152 Mo. 434, this case ¡must be certified to that court for final decision.