dissenting: The majority has attempted to beat a careful, well-measured retreat from the doctrine of parental immunity for negligent torts against unemancipated children. However, I am not deceived by the attempt to limit this monumental shift in policy to auto negligence cases. The rationale and policy behind the majority opinion subjects Kansas families to the constant threat of litigation for all negligent acts of the parents.
Justice McFarland of the Arizona Supreme Court expressed similar fears in his excellent dissent in Streenz v. Streenz, 106 Ariz. 86, 89-90, 471 P.2d 282 (1970), stating:
“I am forced to dissent because there has been presented no persuasive authority that the cure proposed by the majority is not worse than the disease.
“The single question presented in this case is simple enough: should an unemancipated child be permitted to maintain a cause of action against its parents for damages resulting from the parents’ tortious conduct. Although this is an automobile negligence case, the striking down of the immunity doctrine is not limited to this field. The implications in the majority opinion make it plain that the area they have opened is analogous to Gertrude Stein’s famous Rose; a tort is a tort is a tort. If the immunity from suit is removed for an automobile tort, it follows logically that it is removed for all negligent acts — for example, those which may occur in the sanctity of the home. Needless to say, the ‘sanctity’ also includes the ‘secrecy’ of the home.
“A vacuum cleaner forgetfully kept near an entrance; an open, live toaster wire *771carelessly ignored by the do-it-yourself father; a teakettle or pot of boiling water unthinkingly left within the reach of a toddler, all become the elements of a suit by the infant child against his parents. It takes but little imagination to conceive of almost unlimited examples. Liability lurks in every corner of the household. And when tragedy strikes through the inadvertent, but nevertheless tortious, hand of the child’s parent (let us say the father), that same parent must decide — or at least participate in a family decision — whether or not suit should be instituted for the benefit of the child. The father must decide whether his duties as a father compel him to pass upon the possibility of a recovery against himself for accidental injuries to his child of tender years and take the child to some one to act as guardian ad litem to bring the suit against himself. The father must then assume the role of the defendant, and, presumably, assist in good faith in the defense of the suit in accordance with the terms of the ‘cooperation clause’ of his insurance policy.”
The majority attacks the historical basis of the doctrine, reciting the absence of citations in the original Mississippi case and the absence of an English common law background. That is the mode of attack consistently used by the opponents of parental immunity. Just as consistently, those attackers downplay the significant fact that a numerical majority of courts have considered the merits of parental immunity and have adopted or retained it. See Owens v. Auto Mut. Indemnity Co., 235 Ala. 9, 177 So. 133 (1937); Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938); Trevarton v. Trevarton, 151 Colo. 418, 378 P.2d 640 (1963); Reaves v. Horton, 33 Colo. App. 186, 518 P.2d 1380 (1973); Strahorn v. Sears, Roebuck & Co., 50 Del. 50, 123 A.2d 107 (1956); Orefice v. Albert, 237 So.2d 142 (Fla. 1970); Horton v. Unigard Ins. Co., 355 So.2d 154 (Fla. App. 1978); Wisenbaker v. Zeigler, 140 Ga. App. 90, 230 S.E.2d 97 (1976); Eschen v. Roney, 127 Ga. App. 719, 194 S.E.2d 589 (1972); Vaughan v. Vaughan, 161 Ind. App. 497, 316 N.E.2d 455 (1974); Barlow v. Iblings, 261 Iowa 713, 156 N.W.2d 105 (1968); Downs v. Poulin, 216 A.2d 29 (Me. 1966); Montz v. Mendaloff, 40 Md. App. 220, 388 A.2d 568 (1978); McNeal v. Administrator of Estate of McNeal, 254 So.2d 521 (Miss. 1971); Bahr v. Bahr, 478 S.W.2d 400 (Mo. 1972); State Farm Mutual v. Leary, 168 Mont. 482, 544 P.2d 444 (1975); Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959); Nahas v. Noble, 77 N.M. 139, 420 P.2d 127 (1966); Teramano v. Teramano, 6 Ohio St. 2d 117, 216 N.E.2d 375 (1966); Chaffin v. Chaffin, 239 Or. 374, 397 P.2d 771 (1964); Castellucci v. Castellucci, 96 R.I. 34, 188 A.2d 467 (1963); Gunn v. Rollings, 250 S.C. 302, 157 S.E.2d 590 (1967); Campbell *772v. Gruttemeyer, 222 Tenn. 133, 432 S.W.2d 894 (1968); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Texas 1971); Stevens v. Murphy, 69 Wash. 2d 939, 421 P.2d 668 (1966); Oldman v. Bartshe, 480 P.2d 99 (Wyo. 1971).
Again, Arizona’s Justice McFarland persuasively writes:
“[Pjarental immunity became one of the established laws of the land; but not without a severe process of judicial refinement which, over many years and many decisions, struck away the sharp edges of severity spawned by the original trilogy, and honed it into a workable law. The majority opinion views this process as ‘evincing hostility for the doctrine.’ I consider this continued engraftment of exceptions on the application of any rule to be normal, judicial procedure.'Judicial exceptions are equally compatible with the concept of improvement as they are with destruction.
“However, it seems immaterial now whether parental immunity descended from the Common Law, or is a creature of the American judiciary. The doctrine has become firmly imbedded in our jurisprudence over a span of eighty years by virtue of innumerable decisions from almost every State in the Union. I do not believe that courts should slavishly follow precedents. Judges are not eternally shackled to the decisions of their predecessors. On the other hand, I do not believe that precedents can be lightly disregarded. Mr. Justice Jackson aptly describes this in an article in Col. L. Rev. 45:1, at 26:
“ ‘. . . While Judge Cardozo pointed out with great accuracy that the power of the precedent is only “the power of the beaten track,” still the mere fact that a path is a beaten one is a persuasive reason for following it. . . .’
“I find it inconceivable that so many courts have walked in error for so many years even up to the present.” 106 Ariz. at 94.
The validity and significance of the original reasons for adopting the parental immunity doctrine have not waned. Domestic tranquility, proper parental discipline and control, family unity, and social responsibility are integral elements of America’s success as a nation and culture. In our free society, at a time when government and institutions are daily encroaching on the sanctity of the nuclear family, it is crucial to reaffirm our dependence on the family unit. The parent-child relation is the fertile basis for the care, education, moral and spiritual training of our children. The words of the majority in Small v. Morrison, 185 N.C. 577, 584-85, 118 S.E. 12 (1923), ring true today:
“We think this argument, however, is more than overcome by practical considerations of public policy, which discourage causes of actions that tend to destroy parental authority and to undermine the security of the home. No greater disservice could be rendered to any child than to teach its feet to stray from the path of rectitude, or to suffer its mind to be poisoned by ideas of disloyalty and dishonor. The policy heretofore established in this state with respect to the maintenance of the family as the social unit is diametrically opposed to the communistic theory *773which Russia has unsuccessfully sought to put into practice. From the very beginning the family in its integrity has been the foundation of American institutions, and we are not now disposed to depart from this basic principle. Freedom in this country is the self-enforcement of self-enacted laws; and liberty with us is the right to go and do as you please under the law, or so long as you please to do right. Hence, in a democracy or a polity like ours, the government of a well-ordered home is one of the surest bulwarks against the forces that make for social disorder and civic decay. It is the very cradle of civilization, with the future welfare of the commonwealth dependent, in a large measure, upon the efficacy and success of its administration. Under these conditions, the state will not and should not permit the management of the home to be destroyed by the individual members thereof, unless and until the interests of society itself are threatened. Whenever this occurs, adequate provision for the protection of the community, as well as the members of the family involved, has been supplied in the form of juvenile courts, welfare officers, etc. To say that a minor child, while living in the household of its parents, must be given the right to sue the latter for a tort committed, or else be declared an ‘outlaw,’ is simply begging the question and overlooking entirely the consequences that such a proceeding would have upon the household of which said child is an important member and component part. In this society of ours, complex as it is, all rights are relative; and the courts, as well as the Legislature, must look to the larger good and not merely to the smaller hope. They are not to be ‘penny wise and pound foolish.’ ”
Following a similar rationale, the Washington Supreme Court in Borst v. Borst, 41 Wash. 2d 642, 656, 251 P.2d 149 (1952) stated:
“Parenthood places a grave responsibility upon the father and mother. It is their duty to rear and discipline the child. In rearing the child, the parents must provide ahorne and perform tasks around the home and on the premises. In most cases, it is necessary or convenient to provide a car for family transportation. In all the family activities, the parents and children are living and working together in close relationship, with neither the possibility of dealing with each other at arm’s length, as one stranger to another, nor the desire to so deal. The duty to discipline the child carries with it the right to chastise and to prescribe a course of conduct designed for the child’s development and welfare. This in turn demands that the parents be given a wide sphere of discretion.
“In order that these parental duties may adequately be performed, it is necessary that the parents be not subject to the risk of suit at the hands of their children. If such suits were common-place, or even possible, the freedom and willingness of the father and mother to provide for the needs, comforts and pleasures of the family would be seriously impaired. Public policy therefore demands that parents be given immunity from such suits while in the discharge of parental duties.”
The appellant and the majority contend that public policy has changed markedly since the early decisions like Small v. Morrison, 185 N.C. 577. The majority states that “our task is to decide which rule best serves the needs of justice in Kansas in the *774closing years of the twentieth century.” Ante at 766. Yet, a cursory reading of the majority opinion reveals the primary force behind the move to abolish parental immunity is the existence of liability insurance, not a desire to serve the needs of justice. Specifically, we are reminded that Kansas statutorily compels liability insurance for motor vehicles (K.S.A. 1979 Supp. 40-3104). It is argued that liability insurance eliminates the threat of disrupting family harmony and subverting parental discipline. The argument is not convincing. The existence of liability insurance does not remove the inherent danger of the destruction of the parent-child relationship. See Stevens v. Murphy, 69 Wash. 2d at 948.
Evidence that a tort-feasor possesses liability insurance coverage is inadmissible in Kansas courts. K.S.A. 60-454. In Alcaraz v. Welch, 205 Kan. 163, 166, 468 P.2d 185 (1970), we stated:
“[T]he question of insurance coverage is not an issue in this case. By statute, evidence of insurance is specifically inadmissible as having probative value on an issue of negligence or liability. (K.S.A. 60-454.) Moreover, it is established law in this state that the knowing injection of liability insurance coverage by the plaintiff into a negligence lawsuit is inherently prejudicial and grounds for mistrial. (McGuire v. McGuire, 152 Kan. 237, 240, 103 P.2d 884; and Coffman v. Shearer, 140 Kan. 176, 34 P.2d 97.)”
Our well established policy on the inadmissibility of evidence of liability insurance coverage is in accord with the decisions of most states. The fact that the particular defendant-parent is protected by insurance against legal liability does not enable the minor to maintain the action if he could not otherwise have done so. 59 Am. Jur. 2d, Parent and Child § 156, p. 255. The prevalence of liability insurance should not be used as a subterfuge to create a cause of action against the insured parent.
I agree with Justice Cochran of the Virginia Supreme Court, who dissented in Smith v. Kauffman, 212 Va. 181, 189, 183 S.E.2d 190 (1971), stating:
“I also disagree in principle with the majority opinion. It is based on a fallacious rationalization that, since most Virginia drivers are insured against the consequences of their negligence, family harmony and family finances will not suffer from the elimination in automobile accident cases of the parental immunity doctrine heretofore applied to unemancipated minor children. This reasoning overlooks one important fact. Personal injury suits are not always settled out of court and litigation, even between members of the same family, is still an adversary proceeding.
“In a contested case between parent and child there may be either collusion on *775the one hand or direct contradiction of testimony on the other. In either event by this decision we will have contributed to the deterioration of the moral fibre of our children or promoted distrust, disrespect and dissension in the home.”
The majority has given birth to more than one cause of action. We have twins, or perhaps triplets. For with each suit between parent and child, we can expect numerous allegations and potential lawsuits for either lack of cooperation or collusion.
If the majority’s arguments about liability insurance are accepted at face value, there are still going to be problems. Although liability insurance is statutorily required, there is a minimum requirement of only $15,000 bodily injury coverage. In addition, there are always uninsured motorists evading the legal requirements. Even Professor Prosser recognizes the cost of premiums will be taken from the family’s purse. See Prosser, Law of Torts § 123 at 868 (4th ed. 1971); see also Streenz v. Streenz, 106 Ariz. at 92.
In a contested suit by an unemancipated child against a parent, the child’s attorney as guardian ad litem, or in some cases where the guardian ad litem is not a member of the Bar, the attorney employed by the guardian ad litem for the child will be paid attorney fees totaling up to half of the child’s recovery. Another winner will be the insurance companies — they use actuarial information to calculate premiums to make a profit, insuring carefully calculated risks. See Streenz v. Streenz, 106 Ariz. at 92.
Although interspousal immunity is rooted in a distinctly different common law background, it nevertheless reflects the same basic public policy as parent-child immunity. In Sink v. Sink, 172 Kan. 217, 219, 239 P.2d 933 (1952), we recognized the sound reasoning that interspousal litigation would disrupt family harmony. We have repeatedly affirmed that policy decision in O’Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964); Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965); and Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978). We have not accepted the argument that liability insurance eliminates the need for inter-spousal immunity. We should not accept that argument now leveled against parent-child immunity.
I find indefensible the argument of the court that a happy, crippled child whose parents are worthy of affection will be unwilling to sue the negligent parent, and will have no need or thought to sue. To be intelligently informed the child will need *776competent independent legal advice concerning his or her legal rights. Lacking this, the threat of suit hangs over the parents until some time after emancipation of the child when the statute of limitations has run. (K.S.A. 60-515.) The court notes Judge Fuld’s dissent in Badigian v. Badigian, 9 N.Y.2d 472, 478, 215 N.Y.S.2d 35, 174 N.E.2d 718 (1961), and cites Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975). The threat of suit will be particularly disturbing to parents in our litigious society in the “closing years of the twentieth century.”
The unsupported statement of the court, that states which have followed the rule of law adopted today have apparently had “no significant disruption in family relationships as grimly predicted by the prophets of doom,” bears analysis. The assertion challenges a review of recent activity and editorial comment on the national scene.
At the Second National Conference on the Judiciary held in Williamsburg, Virginia, March 19-22, 1978, U.S. Justice Department officials, judges, lawyers, legislators, government officials, professors and influential citizens from across the United States, and judges from common law countries, were assembled by the National Center for State Courts.
The keynote speaker, Fred W. Friendly, Edward R. Murrow, Professor of Journalism, Columbia University Graduate School of Journalism, addressed the assembly “On Judging the Judges.” His opening remarks were:
“Scapegoat or ‘the weakest link in our society’? Judges have some explaining to do. It is now open season on the courts.” State Courts: A Blueprint for the Future, National Center for State Courts (Fetter ed. 1978).
Unveiled at the conference, and the subject of the conference discussion, was “The Public Image of Courts.” The National Center for State Courts had commissioned a survey of more than 3,000 citizens, community leaders, lawyers and judges by Yankelovich, Skelly and White. The results were published at the conference. The bottom line of the whole conference was that the public image of the courts, particularly state courts, was bad.
Following the Williamsburg II conference, in the December 4, 1978, issue of U.S. News and World Report, the banner headline on the cover of the weekly magazine bore the words: “Why Everybody is Suing Everybody.” This was the subject of a special report, beginning at page 50, by the associate editor David F. Pike. The first three paragraphs in the editorial read:
*777“Americans in all walks of life are being buried under an avalanche of lawsuits.
“Doctors are being sued by patients. Lawyers are being sued by clients. Teachers are being sued by students. Merchants, manufacturers and all levels of government — from Washington, D.C., down to local sewer boards — are being sued by people of all sorts.
“The ‘epidemic of hair-trigger suing,’ as one jurist calls it, even has infected the family. Children haul their parents into court, while husbands and wives sue each other, brothers sue brothers, and friends sue friends.”
At the beginning of the editorial is a cartoon depicting a defiant child sitting at the breakfast table with his parents. The punch line is a remark by the father to the son: “If I make you drink your milk, you’ll SUE me?” While U.S. News and World Report is not persuasive as precedent in a legal opinion, the subject of the article and its contents represent fair editorial comment under the United States constitutional protection of free speech and freedom of the press. Following the Williamsburg II Conference and the release of the poll conducted by Yankelovich, Skelly and White, it may fairly be said the editorial discloses public disenchantment with the litigious state of affairs “in the closing years of the twentieth century.”
The November 13, 1978, issue of U.S. News and World Report carried an editorial entitled “Our Hungry Lawyers.” This triggered a flood of letters to the editor, and in the December 4, 1978, issue of the same magazine, at page 55, a sampling of the lawyers’ comments was published.
What is the reaction in Kansas to the litigious state of affairs “in the closing years of the twentieth century?”
The fiscal year 1981 budget of the Judicial Branch of Kansas Government was first studied in the 1980 legislative session by a Ways and Means Subcommittee of the Kansas House of Representatives. The subcommittee consisted of five members of the Ways and Means Committee, two of them being lawyers. In the subcommittee’s report concerning House Bill No. 2828, sec. 5, the following is stated:
“The Subcommittee expresses concern regarding the proliferation of litigation in the judicial system and the increased costs associated with this litigation and with the appeals process. The Subcommittee suggests that the Legislature must recognize this problem as well as recognize that the alternative to reducing or minimizing this increase in litigation is to build an immense bureaucracy to accommodate the increased burden placed on the courts. The Subcommittee recommends that the Judicial Council appoint an advisory committee and that the *778advisory committee be composed of attorneys, judges, and lay persons. It is suggested that the advisory committee be directed to recommend to the Supreme Court and to the Legislature alternative methods by which this increasing workload might either be reduced or more effectively administered.”
The instant case is not the first bout the Kansas Supreme Court has had with the abrogation of judicially created immunities from suit. In Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969), this court abolished the governmental immunity doctrine for torts, when the state or its governmental agencies were engaged in proprietary activities. The doctrine abrogated was of judicial origin. The legislature at its next session enacted K.S.A. 46-901 et seq., (L. 1970, ch. 200, §§ 1-13) and reimposed legislatively the governmental immunity which the court in Carroll v. Kittle abolished.
Later, the doctrine of governmental immunity legislatively declared in K.S.A. 46-901 et seq., was attacked and held to be unconstitutional and void in Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975) (Brown I), by a divided court; but on rehearing the court reversed that decision in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976) (Brown II). In the period between Brown I, handed down by the court on June 9, 1975, and the court’s reversal of its decision in Brown II on March 6, 1976, total damages of many millions of dollars were sought by various plaintiffs who filed lawsuits against the state as a result of the abrogation of immunity in Brown I.
The primary function of the law as applied through the court system is to provide a means for peaceful resolution of legal disputes. In my opinion, the court by its decision herein has gone over dead center, created legal rights where none heretofore existed, and has put in motion a device to crack the fundamental unit in our free civilized society — the family unit; just as scientists have created the mechanism by which to crack the fundamental unit of all matter in nature — the atom — thereby making it possible to unleash in the atom bomb a horrendous instrument of destruction for mankind.
It is respectfully submitted the judgment of the learned trial judge should be affirmed.