(dissecting). I find myself in disagreement with the views expressed by the majority. The question initially presented regarding Mosier v. Carney (1965), 376 Mich 532, is whether it stands as a narrow exception to a general rule or whether it stands for the broader proposition *422that where the reasoning behind the doctrine does not apply, the doctrine itself will not be applied.
The importance of this question arises from the general, all-pervasive application of the doctrine prior to Mosier. In Bandfield v. Bandfield (1898), 117 Mich 80, the Court commenced its opinion with the following lines:
“The sole question is: Can a wife maintain suit against her husband for a personal tort, committed upon her while they were living together as husband and wife? We answered this question in the negative in the case of Wagner v. Wayne Circuit Judge [no opinion, not reported], decided November 17, 1897.”
The language of the Court clearly implies that it was not treating each suit as a case of first impression.
The doctrine is given similar treatment in Harvey v. Harvey (1927), 239 Mich 142; Riser v. Riser (1927), 240 Mich 402; and Kircher v. Kircher (1939), 288 Mich 669. In Kircher the Court concluded at p 671 with the following comment:
“As has been stated, it is contrary to public policy in this State to permit one spouse to sue the other for negligent injury, and this closes the court to the action at bar brought by a resident of Michigan against her husband for a tort committed in Colorado.”
My analysis of Mosier leads me to the conclusion that a majority of the Supreme Court adopted the view that the doctrine of interspousal immunity will no longer be a per se rule, but rather that each case will be examined by the courts, as was done in Mosier, to determine the applicability of the^reasons behind the doctrine. The majority, thus, rejected the method used in the old cases of automatically applying the doctrine in every case.
*423The opinion of . Mr. Justice Souris clearly refused to apply the doctrine to cases where the reasons behind the doctrine do not also apply. As was stated at p 565:
“We have examined the Michigan precedents and have found nothing in them which logically militates against permitting prosecution of the suits here involved. Indeed, as we have seen the ‘reasoning’, if it may be called that, of those cases, has no applicability in the fact circumstances of these instant cases of first impression.” (Emphasis supplied.)
Of the two concurring justices, Mr. Justice O’Hara appears to carve out a very limited exception to the general rule. He would allow recovery only where the wrongful act is the negligent operation of a motor vehicle and the tort results in the death of one spouse.
Mr. Justice Otis Smith, however, goes further and treats each of the three cases then on appeal as ones of first impression. He states beginning at p 573:
“Each of the 3 cases brings some special merit why the old rule should not apply. In Smith v. King, where the marriage no longer exists by reason of the car accident which was fatal to the husband and which seriously injured the wife, the old reasoning is not persuasive. In this case, plaintiff alleges that she received multiple fractures, severe internal and external injuries, and permanent damage by reason of her deceased husband’s ‘wilful and wanton misconduct.’ * * * The public policy reason is inapplicable in this situation because there is no marriage to defend.
“In Mosier v. Carney, suit was brought to recover damages on behalf of the children only for the loss of their mother who died in a car accident, allegedly caused by the gross negligence of the father and the concurring negligence of another driver. If such can be proved, I see no reason for denying to the *424children compensable damages which they would otherwise receive if the negligent driver had been a stranger.
“As to Dood v. Mosher, the injury complained of occurred before marriage and allegedly resulted in plaintiff losing six months from gainful employment. The fact that the parties were married about a year after the injury should not extinguish the right to sue and recover. And although I fully recognize that the likelihood of collusion rises sharply if there is an identity of economic interests, I am certain that the fact finder will scrutinize such claims with care where plaintiff and defendant are husband and wife and have a substantial identity of economic interest.” (Emphasis supplied.)
Taken as a whole, the opinions of Justice Otis Smith and Justice Souris, which represented the views of a majority of the Court, establish two points. First, a majority of the Court is now going to treat interspousal suits as ones of first impression, and enforce the doctrine only in those cases where the reasons for the rule apply. Second, that in treating such suits as ones of first impression, the Supreme Court has held the doctrine inapplicable in two specific situations.
Following the lead of the majority in Mosier, we should treat the instant case as one of first impression. The question, thus, becomes whether the reasoning behind the doctrine is inapplicable to the facts of the instant case, just as the Court in Mosier found them inapplicable to the facts therein.
When considering the reasons behind the doctrine, the mental incompeteney of a spouse has the same effect as termination of the marriage by death. Plaintiff alleges that, as a result of her husband’s “wanton, wilful and gross negligence”, she received severe injuries, including brain damage. It is conceded that she is now a mental incompetent as a *425result of tlie accident. Just as where death is the injury, here too there can he no legitimate concern that the claim is frivolous.
Furthermore, in view of plaintiff’s declared mental incompetency, there is little danger of collusion between plaintiff and defendant.
Finally, the mental incompetency of plaintiff caused by defendant’s allegedly wrongful action would appear to have already so completely disrupted “the sacred relation of man and wife” that the instant law suit should not be barred by public policy. Moreover, as an incompetent, plaintiff wih have no feelings of bitterness resulting from the suit, and defendant cannot be expected to direct any resentment towards plaintiff, since it was her legal guardian who initiated suit.
I would affirm and remand for trial with costs to plaintiff.