(dissenting).
Reversing the Court of Appeal,1 the present decision allows an insurer sued by a wife to enforce contribution against her husband for the payment of her damages. The practical effect of this unfortunate decision is to cut in half the value of a wife’s insurance claim, when she is injured under circumstances in which the husband may be one of those at fault. In my opinion, the holding is unsound, being contrary to recent, well-considered decisions in Louisiana: Johnson v. Housing Authority of New Orleans, La.App. 4 Cir., 163 So.2d 569 (1964) and Rouley v. State Farm Mutual Automobile Insurance Co., W.D.La., 235 F.Supp. 786 (1964).
Article 1111 of the LSA-Code of Civil Procedure provides:
“The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.”
As amended by Act No. 30 of 1960, Article 2103 of the LSA-Civil Code states:
“When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.
“A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce con*710tribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff.”
Clearly, the wife-victim cannot recover damages from her husband. LSA-R.S. 9:291 prohibits a married woman from suing her husband for a delict, or tort. The statute embodies a strong public policy of ancient origin. It can be traced to the Spanish Code, Las Siete Partidas. It appeared as Article 105 in the Code of Practice of both 1825 and 1870. Act No. 31 of 1960 transferred the law, with minor changes, to LSA-R.S. 9:291. This act was a companion measure to Act 30 of 1960, amending Article 2103 of the LSA-Civil Code to allow debtors liable in solido to seek contribution from a co-debtor by third party petition. It follows that the law retains the policy banning suits by the wife against the husband. Moreover, a plausible argument can be advanced that the policy has been strengthened by its reaffirmation and transfer from the procedural code to the general body of statutory law.
In Rouley v. State Farm Mutual Automobile Insurance Co., supra, the suit was on behalf of a child. The defendant-insurer sought contribution from the child’s father by third party petition. The Court dismissed the third party petition against the father, stating:
“* * * To permit a joint tort-feasor to compel contribution from a husband or from a parent in such a case is to invest a wrongdoer with a greater right than the tort victim has, and runs counter to the well-established policy of our law that one should not be allowed to profit from his own wrongdoing. * * * ”
“In addition, the public policy of the state which prompted the enactment of LSA-R.S. 9:291 and 9:571 and similar provisions, would be violated, and even further, it would open the door to and actively promote collusion between father and child or husband and wife to defeat the common danger posed by the demand of the tort-feasor seeking contribution from one clothed with such immunity, upon whom the tort victim is usually legally and in fact dependent.” 235 F.Supp. 786, 793.
In Johnson v. Housing Authority of New Orleans, supra, the Court of Appeal, Fourth Circuit, likewise held that the defendant-insurer could not enforce contribution against the father in a suit for damages on behalf of a child.
*712On the original hearing, the court said;
“The exception was properly sustained. To allow the defendants herein to prosecute their demands for indemnification or contribution against the parents would in effect be investing a wrongdoer, as against the co-tortfeasor, with a greater right than the tort victim has. The parents may urge their immunity from suit against the demands of its co-tortfeasor as well as they could have urged it against any claim asserted by the child.”
On rehearing the court adhered to its original decision, adding;
“In other states, almost without exception, the rule is that to entitle a tort-feasor to contribution from another tort-feasor whose negligence has concurred in producing an injury to a third person (in the instant case, the child), such third person must have an enforceable cause of action against the one from whom contribution is sought.”
These two decisions, as well as that of the Court of Appeal in the present case, align with the case law throughout the nation. The annotation on this subject in 19 A.L.R.2d 1003 summarizes the law as follows:
“The courts have recognized and applied with practical unanimity the rule that to entitle a tortfeasor to contribution from another tortfeasor whose negligence has concurred in producing an injury to a third person, such third person must have an enforceable cause of action not only against the tortfeasor seeking contribution but also against the one against whom contribution is sought.”
See also 18 Am.Jur.2d, Contribution, § 49, pp. 71-72; 18 C.J.S., Contribution, § 3, p. 6; and Prosser, Law of Torts, 3d Ed., § 47, p. 277 (1964).
The same rule has been adopted under the Uniform Contribution Among Tort-feasors Act in effect in a number of states. 9 Uniform Laws Annotated, Uniform Contribution Among Tort-feasors Act, § 1, Commissioners’ Note, p. 118 (1964 Cumulative pocket part) ; Baltimore Transit Co. v. State to Use of Schriefer, 183 Md. 674, 39 A.2d 858, 156 A.L.R. 460. The courts reached this result under the uniform act on the theory that the right of contribution is a derivative right and that a contribution-defendant must be in a position “to suffer adverse judgment at the instance of the injured person whether or not the injured person elected to impose it.”
Apart from the legal basis for denying contribution against the husband, which I believe to be adequate, sound policy considerations also support the rule. Firstly, contribution in such a case frustrates efficient loss distribution, the salutary objective of any insurance program. Affected by this *714decision, of course, are the uninsured husbands, for if a husband carries public liability insurance, his insurer may be subjected to contribution under settled rules. See Rouley v. State Farm Mutual Insurance Co., supra. The result, then, of the present decision is to shift the loss back to the shoulders of the uninsured husband, who cannot distribute it at all. Secondly, it complicates the formerly clean-cut direct
action of the wife by injecting her husband into the litigation in an adversary position.
For the reasons assigned, I respectfully dissent.
Rehearing denied.
HAWTHORNE and SANDERS, JJ., are of the opinion that a rehearing should be granted in this case.. Smith v. Southern Farm Bureau Casualty Ins. Co., La.App., 3 Cir., 164 So.2d 647.