(dissenting). I think it is very clear that the legislature did not, either by ch. 99 of the Laws of *2181881, sec. 246.07 (sec. 2345), or by ch. 529, Laws of 1921 (sec. 6.015), or by them together, intend to do away with the firmly established and well recognized common-law rule that neither spouse can sue the other, a child a parent, or a parent a child, for a tort committed by any one of such on the person of the other, and therefore I must' dissent. I also regret that this new breach in the walls surrounding and guarding the rights to the family relation, one of the trinity of rights for whose recognition and protection every government which can justify its existence is organized (1 Cooley, Torts (3d ed.) p. 27), is now being made, as it seems to me, by the judiciary. If such a substantial change has to come, I should much prefer to see it done under the legislative banner and by clear and categorical declaration.
It is manifest that the majority opinion, while only declaring that a wife may sue the husband, must nevertheless necessarily result in the conclusion that a husband may likewise sue the wife, and, as a necessary corollary, to permit of lawsuits by a child against a parent or a parent against a child, because it abolishes the common-law doctrine, based as it was upon the idea of the preservation of the family and a refusing to recognize tort liabilities between its members. It cannot logically hereafter be held that, under these statutes, the wife only may sue for such tort and the husband not, for then she has been granted not equal but superior rights to the male.
That no common-law right of action existed in favor of either spouse for damages for such torts is unquestioned. 1 Cooley, Torts (3d ed.) p. 474. It was so stated in Thompson v. Thompson, 218 U. S. 611, 615, 31 Sup. Ct. 111, and so held in Peters v. Peters, 156 Cal. 32, 103 Pac. 219, 23 L. R. A. n. s. 699, in an action by a husband against a wife who shot him, and in Lillienkamp v. Rippetoe, 133 Tenn. 57, 59, 179 S. W. 628, L. R. A. 1916 B, 881, by *219a divorced wife for- an assault and batter)^ by husband during coverture.
The same rule applies to tort actions by unemancipated minor children against the parent. 1 Cooley, Torts (3d ed.) p. 493. So held in Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135 (with note at p. 1157), which case reviews many others. Also in Matarese v. Matarese (R. I.) 131 Atl. 198.
That there can be no logical distinction between a liability for wilful or intentional injury and for that resulting from mere negligence is demonstrated in Roberts v. Roberts, 185 N. C. 566, 118 S. E. 9, 29 A. L. R. 1479.
Many of the decisions on this subject comment upon the remedies afforded under the common law and the procedure of today through the power of the state to control the abuses of an infant in the family relationship by criminal proceedings and supervisory control over its custody; and for the spouse, by criminal'proceedings and by divorce. To illustrate: a divorce proceeding, affording a broader and more adequate remedy than the common law, is the exclusive remedy, so far as barring dower is concerned, of the husband of an adulterous wife, as held in Davis v. Estate of Davis, 167 Wis. 328, 167 N. W. 819. See, also, Thompson v. Thompson, 218 U. S. 611, 619, 31 Sup. Ct. 111.
The construction by the majority of ch. 99 of the Laws of 1881, authorizing as it must all- kinds of tort actions, those based upon mere negligence as well as those within the field of wilful injuries, appears to be an encroachment upon the field, covered by and included within the remedies provided for in divorce proceedings. Though marriage is defined under our statutes, sec. 245.01, so far as its validity in law is concerned, as a civil contract, yet the moment such contract is entered into a status between the parties arises of a distinct and exclusive nature. State v. Duket, 90 Wis. *220272, 276, 63 N. W. 83; Lyannes v. Lyannes, 171 Wis. 381, 389, 177 N. W. 683. Many of the rules applicable to contracts in the ordinary meaning of the term are necessarily excluded from application to the marriage contract and status. On the same day that the opinion here is handed down, this court holds in Ableman v. Holman, 190 Wis. 112, 208 N. W. 889, that the contract embodied in a promise of marriage is so unique and outside of the field of contracts that there cannot be recognized a cause of action for inducing its breach; and in Wells v. Talham, 180 Wis. 654, 194 N. W. 36, the marriage contract is held immune from attack where entered into by reliance upon false representations; and all this in spite of ch. 99 of the Laws of 1881, supra.
If, -as now held by the majority opinion, the common-law doctrine of refusing judicial remedy by actions of tort for injuries to the person of one spouse is abrogated in the particular instance presented here, it must necessarily be abrogated entirely. It cannot afterwards be left to the courts to so slice it up as to recognize it as still alive for certain classes of injuries to the person of the spouse and as no longer alive for other classes of such injuries. The standard having been now fixed as of legislative creation and determination, no method is or probably well can be pointed out for judicial limitation or discrimination. The common law on this subject must be considered as all swept away or not at all; no half-way stopping place is indicated.
The uninvited kiss, no matter how cold and chaste, upon the nonconsenting alabaster feme sole brow is an assault and battery, and substantial damages may be awarded for such. Craker v. C. & N. W. R. Co. 36 Wis. 657, where a verdict of $1,000 (p. 661) was upheld. Under the present construction by the majority of the rights of the married woman, such form of assault and battery by a present-day husband must necessarily result in giving a right of action to the present-day wife. The surrender of his former im*221munity is hardly compensated by .the possibility of recovering, under the new dispensation, monetary damages by an overkissed husband.
It would be hard to point out a more firmly rooted doctrine in the prior decisions of this state than that the common latv, in existence here under the constitutional recognition by sec. 13, art. XIV, is not to be done away with, altered, or modified unless the legislative intent so to do is clearly evidenced, and that the use of broad and general language is not necessarily indicative of such intent. It is so said by this court as late as Kappers v. Cast Stone Const. Co. 184 Wis. 627, 633, 200 N. W. 376; Sullivan v. School Dist. 179 Wis. 502, 506, 191 N. W. 1020; and as stated in Orton v. Noonan, 29 Wis. 541, 545, such purpose, viz, “to abrogate or change any rule or principle of the common law, must be clearly expressed so as to leave no doubt of, the intention of the legislature.”
The value of and importance attached to the fundamental doctrines of the common law so under protection of our constitution has been steadfastly recognized, Coburn v. Harvey, 18 Wis. 147, holding in force the landlord’s common-law right of distress for rent (abolished by ch. 74 of the Laws of 1866) ; the extent to which the common-law rights of property are to be protected under this constitutional provision is well illustrated in the often discussed and criti-cised case of Huber v. Merkel, 117 Wis. 355, 94 N. W. 354, upholding the right of a property owner to drain by his own well the prior existing well on his neighbor’s property (p. 363), and this even in the face of a prohibiting statute (p. 365) ; its applicability to conditions of the present day is well set forth by Mr. Justice Timi.in in Metropolitan Cas. Ins. Co. v. Clark, 145 Wis. 181, 182, 129 N. W. 1065; its rules, formulated long ago and at a time when railroads were not even dreamed of, have been held sufficient unto themselves to require a railroad to pay the costs occasioned *222by its construction of a new way across a public highway. Superior v. Roemer, 154 Wis. 345, 356, 141 N. W. 250. In this view this court has been until now in accord with the United States supreme court as is expressed in Thompson v. Thompson, 218 U. S. 611, 618, 31 Sup. Ct. 111.
It is not and cannot be contended that there is express language so abolishing the common law, either in the amendment by ch. 99 of the Laws of 1881, which, after forty-five years of innocuous desuetude in that regard, is now declared to have such potent; though so long latent, effect in overturning that which has been all these years an unquestioned doctrine by bench and bar,.or by ch. 529 of the Laws of 1921. The conclusion reached 'by the. majority must therefore be based solely upon construction, — a construction, moreover, which in creating new rights for the wife also, necessarily creates new rights for husband and minor child.
Ch. 99 of the Laws of 1881, upon which is placed the credit or blame for this substantial innovation, though entitled “An act to amend section 2345, . . . giving- married women the right to sue and maintain an action,” and adding the provision cited by the majority, was, in the case decided in 1883 upon which so much stress has been laid, of Shanahan v. Madison, 57 Wis. 276, 15 N. W. 154, there described (p. 280) as an amendment that perhaps would have been more germane to secs. 2342 and 2343, defining a married woman’s rights as to property, than to the section to which it was added, defining rights of action and remedies as to her separate property, and also there declared as being intended to take entirely from the husband the right and control of any action for any injury to the person or character of the wife or in any judgment recovered in such action. To my mind this clearly indicates that the court at that day construed this very amendment as being intended to remove the common-law disability of a married woman to sue in her own name and hold judgments so recovered in *223her own name, but only as to such causes of action as were theretofore recoverable with or through the husband, and not, as now construed, to effect such a fundamental change in the common law as to create a new and wide field of remedies for and against members of the family unit.
After this legislation in 1881 it was evidently still the degislative view, as it was the judicial view (see T. T. Haydock Carriage Co. v. Pier, 74 Wis. 582, 590, 43 N. W. 502), that in spite of the broad language in ch. 99 of the-Laws of 1881, supra, a married woman could not act as a trustee, executrix or administratrix, or as guardian (except as theretofore provided as general guardian of 'her own children by a former husband), for by ch. 68 of the Laws of 1889 her rights and powers in that regard were extended. Then came Duffies v. Duffies, 76 Wis. 374, 45 N. W. 522 (1890), expressly passing upon this ch. 99 of the Laws of 1881 (pp. 384, 385), and holding that a wife could not maintain an action for alienation of the husband’s affections. The general public policy of such actions is there discussed, and then by ch. 17 of the Laws of 1905 this very section was again amended by adding to the general language permitting her to “bring and maintain an action in her own name for any injury to her person or character the same as if she were sole,” the specifically limited addition that “She may also bring and maintain an action in her own name, and for her own benefit, for the alienation and the loss of the affection and society of her husband.” It is quite significant, with the attention of the legislature having been directed in the Duffles Case to this precise statute and afterdts amendment by ch. 99 of the Laws of 1881, that if it was the legislative intent to abrogate the established common-law doctrine entirely as to a married woman suing for torts, the 1905 amendment should be specifically limited as it was.
It is interesting to note that under the New York statutes it was held as early as 1889 in Bennett v. Bennett, 116 N. Y. *224584, 23 N. E. 17, that the wife might sue another woman for alienating the husband’s affections; and in Oppenheim v. Kridel, 236 N. Y. 156, 140 N. E. 227, 28 A. L. R. 320, such right was extended to an action for criminal conversation, and upon the reasoning that, the husband having a right of action of that nature, the married women statute permitted such an action by the wife (p. 164), and quoting, (p. 165) their present statute, clearly as far reaching as ours, to the effect that “a married woman has a right of action for an injury to her person, property or character, or for an injury arising out of the marital relations, as if unmarried.” Yet it was held in Schultz v. Schultz, 89 N. Y. 644 (1882), by a memorandum opinion, that the wife had no cause of action for assault and battery committed by the husband; and such is the unquestioned law of that state to the present time, as appears from Abbe v. Abbe, 22 App. Div. 483, 48 N. Y. Supp. 25, and references in Thompson v. Thompson, 218 U. S. 611, at p. 619, 31 Sup. Ct. 111; 6 A. L. R. 1038; 33 A. L. R. 650.
No aid can properly be given to the conclusion of the majority here by sec. 6.015 (ch. 529, Laws of 1921), because from its very title it was “to remove discriminations against women and to give them equal rights before the law,” and clearly ought not to be construed as creating new rights or superior rights. Its purpose was to remove supposed fetters, not to forge new ones.
I think what is said in Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, in the majority opinion covering the subjects of any such right of action and the rule of statutory construction involving a conflict with common-law principles, as well as to the remedy that is afforded the member of the family for the abuse of that relationship by the other through the criminal or divorce courts (p. 619), is entitled to great weight and deference.
To the' list of cases cited in the majority opinion holding contra to the views there expressed and upon statutes *225similar to ours may be added Faris v. Hope, 298 Fed. 727, denying to the wife a suit for libel against her husband; Rogers v. Rogers, 265 Mo. 200, 177 S. W. 382; Matter of Badger, 286 Mo. 139, 226 S. W. 936, 14 A. L. R. 286.
I am authorized to state that Mr. Chief Justice Vinje and Mr. Justice Doerfler concur in this dissent.
The following opinion was filed November 9, 1926: