(dissenting) :
Dicta and the analogy to husband and wife do not persuade me that Maryland would deny this youth recovery against his father’s employer. Riegger v. Bruton Brewing Co., 178 Md. 518, 16 A.2d 99 (1940), the case most closely related to the issue before us, dealt with two principles of law which are not applicable here. In Riegger the court held a wife could not sue her husband’s employer for injuries resulting from her husband’s negligence because (1) at common law a wife could not maintain an action against her husband for a personal tort; and (2) if the suit were maintained against the employer, the employer in turn would have a cause of action against the husband, thus permitting the wife to do indirectly what she could not do directly. But the common law did not forbid a child from suing his parent for a personal tort. Mahnke v. Moore, 197 Md. 61, 77 A.2d 923, 924 (1951); Dunlap v. Dunlap, 84 N.H. 352, 150 A. 905, 906, 71 A.L.R. 1055 (1930). And not until late in the last century did an American court first apply the defense of parental immunity. E. g., Hewellette v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682 (1891); see Prosser, Law of Torts 886 (3d ed. 1964).
The second point of distinction between Riegger and the case before us is perhaps of less theoretical significance, but it has a practical aspect which should not be overlooked. Here, if the child were allowed to recover, the employer would have no meaningful cause of action against the father, for the same policy of liability insurance that protected the employer also protected its employee, the father. Therefore, this suit would not disrupt the peace and tranquillity of the family by permitting an indirect action against the father.
True, Maryland will not permit a child to maintain a suit in equity, apart from statute, for support and maintenance. Yost v. Yost, 172 Md. 128, 190 A. 753 (1937). But there the court was careful to point out that the basis of the suit was “nonfeasance as to the performance of moral duties of support” which “as distinguished from overt acts of tort, grow out of and pertain to the relation of parent and child.” “Stated differently,” the court continued, “for acts of passive negligence incident to the parental relation, there is no liability.” [190 A. at .756]. In contrast, the Maryland Court of Appeals has sanctioned a child’s suit against a parent’s executor for personal injuries caused by the parent’s intentional “atrocious” tort. Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951).
Here, the tort for which the child sues was not “atrocious” as in Mahnke, but neither was it simply “nonfeasance” or “passive negligence incident to the parental relation” as in Yost. The father’s negligent operation of his employer’s truck lies between these extremes, but it does not directly involve the duties of discipline and care which undergird the doctrine of parental immunity. Under similar circumstances the child would be allowed recovery in most of the states whose courts have considered the problem, see Annot., 1 A.L.R.3d 677, 702 (1965), and the majority view has persuasive support, see Prosser, Law of Torts 885 (3d ed. 1964).
Compensation of innocent victims of negligent motorists is so essential to the state and its citizens that the Maryland legislature has enacted financial responsibility laws and established an unsatisfied claim and judgment fund. Md. Ann.Code art. 66y2 §§ 116-179 (1967). The public policy, which this legislation illustrates, coupled with precedent of the *1248Maryland Court of Appeals disavowing rigid adherence to the defense of parental immunity leads me to conclude that Maryland law would allow this cause of action to be maintained.