concurring specially.
A wife may not sue her husband on a direct cause of action personal to herself, Heyman v. Heyman, 19 Ga. App. 634 (92 SE 25); neither can she bring a derivative cause of action for the death of their five-year-old unemancipated child, Chastain v. Chastain, 50 Ga. App. 241 (177 SE 828). An unemancipated child under the control and maintenance of the father (Code §§ 74-104, 74-105, as amended, and head of the household or family, Code § 53-501) does not have a cause of action against the father because it would be repugnant to public policy. Bulloch v. Bulloch, 45 Ga. App. 1 (163 SE 708). Nor can the unemancipated child sue either parent of the *412marriage, mother or father. Eschen v. Roney, 127 Ga. App. 719 (194 SE2d 589) relying on Shell v. Watts, 125 Ga. App. 542 (188 SE2d 269). The latter was reversed on other grounds in Shell v. Watts, 229 Ga. 474 (192 SE2d 265). This parental immunity, however, is forfeited if a wilful tort is committed on the unemancipated child. Wright v. Wright, 85 Ga. App. 721 (70 SE2d 152). Likewise an unemancipated child may through the father sue the mother’s employer even though the child’s mother was the negligent driver of the employer’s vehicle. Stapleton v. Stapleton, 85 Ga. App. 728 (70 SE2d 156).
An emancipated child may sue a parent for a personal tort founded on negligence (Farrar v. Farrar, 41 Ga. App. 120 (152 SE 278)), but emancipated children may not sue their father in a wrongful death action seeking recovery for the mother’s death because the action would have been derivative from the mother who had she lived could not have sued her husband for the injury sustained. Harrell v. Gardner, 115 Ga. App. 171 (154 SE2d 265), this writer dissenting. Emancipated children likewise may not sue their stepfather who had shot and killed the children’s mother and himself, based on similar derivative rationale of Gardner, supra, although this writer, author of the majority opinion, agrees with the first paragraph of the dissent in this 5-4 decision wherein Judge, now Justice, Jordan said: "If this court’s decision in Harrell v. Gardner, . . . cited in the majority opinion, requires the result reached here then in my opinion it should be re-examined.” Horton v. Brown, 117 Ga. App. 47, 53 (159 SE2d 489).
"As one cannot do indirectly what the law does not allow to be done directly, a third-party action cannot be maintained by a defendant when sued by a minor son as against his mother on account of negligent acts of another child imputed to her by means of the operation of a family purpose vehicle.” Eschen v. Roney, 127 Ga. App. 719, supra, this writer dissenting. In his majority opinion and while "On Motion for Rehearing” one of Georgia’s great judges, Judge Sol Clark, focused on three points: (1) Adherence to stare decisis, (2) immunity for protection of the doctrine of intra-familial harmony, unity and tranquility, and (3) non-indulgence of "judicial *413legislation.” I thought my answer, at the time, to his first point was adequate citing Ellison v. Ga. R. & Banking Co., 87 Ga. 691, 696 (13 SE 809, 810), Humthlett v. Reeves, 211 Ga. 210, 215 (85 SE2d 25, 30), and under Hall v. Hopper, 234 Ga. 625, 632 (216 SE2d 839), I believe that "... stability must give way to justice ...” might now be added. As to Judge Clark’s third point that Georgia courts should not or do not indulge in judicial legislation or sociological jurisprudence, I concur wholeheartedly. Oxford Professor Ronald Dworkin is today’s leading exponent stressing that judicial decisions in hard cases must be based on legal "principles” within the ethical considerations existing at the time of adoption of the guarantees protecting our rights in the Constitution based on higher or immutable law. H. L. A. Hart, on the contrary, urges utilization of utilitarianism and positivism of "policy” which results injudicial legislation of current humanistic ethical sociological and environmental and social change type jurisprudence. Ga. Law Review, September 1977, Vol. 11, No. 5, Jurisprudence Symposium. Judge Clark’s second point of prime concern is to preserve the peace, love and unity of the basic family household concept by preventing suits between members of a family. This is a well established principle and should be maintained inviolate as the public policy of Georgia, not necessarily because of Judge Clark’s stated reason of stare decisis, but because of ethical "principles” surrounding protection of fundamental privacy rights of people that comprise the basic family household concept. "This law, however, operates directly on an intimate relation of husband and wife ...” and it was further said: "We deal with a right of privacy older than the Bill of Rights . . . Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U. S. 479, 486 (85 SC 1678, 14 LE2d 510) (1965). Speaking of the immediate product and progeny evolving out of conception within the household, the unemancipated child, the court states: ". . . Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Pierce v. Society of Sisters, 268 U. S. 510, *414535 (45 SC 571, 69 LE 1070) (1925). Meyer v. Nebraska, 262 U. S. 390 (43 SC 625, 67 LE 1042) (1923). The rights of those within the above family household for privacy, peace and tranquility from lawsuits from each other appear to be within the penumbras and emanations of the 1st, 3rd, 4th, 5th and 9th Amendments. Yet, the due process rights of another, enabling one to seek a remedy and sue, for an injury, are no less precious constitutional rights.
It appears an unemancipated child may sue his mother’s employer, but an emancipated child cannot sue a stepfather for the wrongful death of his mother. If an emancipated child cannot sue a stepfather how stands litigation by an unemancipated child, as here, against one’s grandfather? First, what constitutes a family? "A collective body of persons, consisting of parents or children, or other relatives . . . residing together in one house or upon the same premises; a collective body of persons, who form one household, under one head and one domestic government, and who have reciprocal natural and moral duties to support and care for each other ...” 35 CJS, 938, Family. (Emphasis supplied.) Consider also 81 ALR2d 1156, § 1: "Whereas in the field of parent-child and husband-wife relationships there has been a tradition, in the American courts at least, to deny the right of such parties to sue each other in tort — although the recent trend has been to liberalize this rule — the arguments advanced in favor of precluding the maintenance of such actions between such closely related parties have never found acceptance where the relationship involved was that of sibling, ancestor, or other collateral relative.” The line or circle must be drawn somewhere as to the immediate family.
There seem to be distinctions as to what may be referred to as family or group concept: (1) The basic fundamental husband-male head of household, wife-female unemancipated child concept, the peace and tranquility of which is protected by public policy is the immediate family unit household because no institution is more deeply rooted in our history and heritage than this defined family unit. (2) The general nuclear family includes (1) above and others. "The tradition of uncles, *415aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.” Moore v. City of East Cleveland, 431 U. S. 494 (97 SC 1932, 52 LE2d 531) (1977). (3) An extra-nuclear self-acknowledged and professed family and group of many unrelated individuals of either sex living in one household. This type group household did not qualify as a defined "family” in the zoning case of Village of Belle Terre v. Boraas, 416 U. S. 1 (94 SC 1536, 39 LE2d 797) (1974).
The individuals within the concepts of (2) and (3) not designated in (1) would not be protected in my opinion by public policy from suit among other members within that household. Gardner, Brown and Roney all appear to me to be in conflict with the holding in Stapleton. I would agree to overrule the first three cases to conform with Stapleton so that emancipated children who have evolved out of the (1) basic family household could sue, as could the stepfather and grandfather be sued, since they are in the (2) and (3) categories concept of household group or family. These three cases are all whole court cases and if not overruled must be followed rather than the three-judge case of Stapleton.
Further confusing and compounding the issues at bar is the enactment of the conference committee substitute to Senate Bill 18 in the 1979 General Assembly and now signed by the Governor. This legislation substantially changes the marital duties of support between husband and wife partners, both as to support during and upon dissolution of marriage, of each other and unemancipated children. The husband, as head of the household, under Code Ann § 53-501, was left intact, yet responsibilities within the ongoing marriage of the basic (1) family unit household has been greatly altered, although this change was not necessarily required by Orr v. Orr, — U. S. — (99 SC 1102, 59 LE2d 306) (1979). The man-husband/woman-wife parties in a marriage cannot sue each other in tort because there is no one to sue since "... her legal civil existence is merged in the husband,” and this merger appears to be an immovable object protected and preserved by both public policy and Code Ann. § *41653-501, unless the law otherwise recognizes her separately. The recent case of Orr v. Orr, supra, mandated gender neutralizing of divorce and alimony laws which referred only to "husband” or "wife” as to who must pay alimony upon dissolution of the marriage. It is interesting to note that the General Assembly instead of gender neutralizing used gender neuterizing leaving no reference to the words "husband” or "wife” in the amended legislation but included and substituted the words "persons” or "spouses.” Pretermitting whether this could by implication repeal definitions of persons able to contract and enter into a marriage as now adopted by Colorado, or a concomitant gender neuterizing thereof, as was done to persons involved in the dissolving of a marriage, as long as Gardner, and its progeny are still the law I am constrained to say that the grandparent cannot be sued as could the stepfather not be sued.
Justice Conley Ingram has stated in his dissent in Friedman v. Friedman, 233 Ga. 254, 260 (210 SE2d 754), "To the majority decision which sweeps aside the important public interest in marriage and divorce which has always been embodied in our law” and Justice Ingram later said in Blois v. Blois, 234 Ga. 475, 478 (216 SE2d 281), "If we are going to travel this new expressway to divorce, where the state no longer takes an interest in marriages and does not 'hinder facility in the procurement of divorces,’ I firmly believe it would be best for the General Assembly to strike all the fault concept grounds of divorce from the law and completely overhaul the divorce and alimony statutes to bring them in line with the new concept. This would seem to me a much better alternative than the painful and hodgepodge attrition and sub silentio repeal of the existing case and statute law covering the fault grounds. There is no dearth of model laws which could be used as a guide for legislative action. For example, the Uniform Marriage and Divorce Act is available with commentary and is useful in considering this problem.”
House Bill No. 1031, which is now pending in the General Assembly, could radically eliminate right-wrong from the family household concept and, if the proposal is adopted would strike all grounds of divorce except the *417no-fault irretrievably broken ground. This would place the institution of marriage, and the divorce laws in the same liberal trend as no-fault insurance, no-fault alcoholism, no-fault effort in redefining the test for insanity, see Shirley v. State, 149 Ga. App. 194 (253 SE2d 787), no-fault and no right or wrong answers within the current dominant values clarification and situation ethics taught in public schools and universities, and no-fault relativistic rehabilitation in prison systems. All of these trends erode absolutes undergirding the law and ultimately lead to a society based on total permissiveness1 of no right and no wrong and will eventually change the public policy to allow those within the basic family unit, assuming this concept survives,2 to sue each other. This trend itself is a form of positivism or sociological jurisprudence based on utilitarianism of "policy” rather than "principle.” This was the legisprudence "policy” *418judicial philosophy of Justice Oliver Wendell Holmes when he said, "whatever the crowd wants” rather than that espoused by Ulpian’s jurisprudence based on principle of "just or unjust.” It would appear to be the better rule to the writer to retain fault/no fault concepts within the present basic family unit and concept of marriage and divorce laws as would restitutional retribution appear to retain right/wrong concepts in prison and pehal punishment rather than use of relativistic rehabilitation, yet these are matters that must first be addressed by the General Assembly.
We must affirm this case unless the three above-mentioned cases are reversed; therefore I concur specially.
Note GBI Director Tom McGreevy quotation appearing in The Atlanta Journal, Tuesday, December 26, 1978, as to no-fault permissiveness: "End of'Do your own thing’ called key to drop in crime.”
The Utopian model depicted in Brave New World for young students as the prospective family concept of values for the future is generally required outside reading along with Lord of the Flies and The Hobbit in "Modern British Literature” and "20th Century English” in many 11th grade public schools. Normal Utopian future family life is portrayed as one of free love, dope, soma and hypnopaedia drugs only three or four generations away for all. Huxley suggests to students:
"Hug me till you drug me, honey;
Kiss me till I’m in a coma;
Hug me, honey, snuggly bunny;
Love’s as good as soma.”
It is suggested in Utopia that marriage licenses will be, for the future family, issued like dog licenses, — good for 12 months only. There will be no law against changing dogs or keeping more than one animal at a time. pp. xiii, 112. Brave New World by Aldous Huxley, Perennial Classic, Harper & Row Publishers Inc., New York, N. Y. 1946.