(concurring in result) :
I concur in the result reached in the opinion of Mr. Justice Bussey. A mere reversal, however, without elaboration upon the law and the reasons for the reversal leaves the trial judge with no standard to go by in trying the case and in charging the jury. Inasmuch as no factually similar cases have been cited to the court, and since we have found none, it is appropriate that this court, which is charged with the duty of declaring the law, establish guidance for that court which must try the case, by stating somewhat in detail why the demurrer should have been overruled.
This case requires a determination of the factual circumstance which will create liability when a person turns in a false alarm and thereby sets an emergency vehicle into operation on the public streets, resulting in injury to a plaintiff. This determination will be an extension of the existing common law since no statute is controlling. The determination requires a new policy decision.
Whereas this court has not heretofore established on the civil side of the court the duty which a defendant giving a false emergency alarm owes to a plaintiff injured by an emergency vehicle, the legislature has declared the policy on the criminal side of the court by making it a misdemeanor for one to “wilfully, maliciously or mischievously * * * give a false alarm.” (Section 16-560 of the Code). This statute, which applies to both fire and police alarms, does not make criminal one who is merely negligent in giving such alarm.
It should be the policy of the law to encourage the reasonable and proper use of alarm devices. The proper use of the alarm is often for the benefit of other people. Simultaneously it should be the policy of the law to discourage and prevent, where possible, the intentional giving of false *554alarms. The improper use of the alarm not only creates additional hazards on the streets, but makes emergency vehicles temporarily unavailable to persons in real need of them.
A mother who summons an ambulance for a child mistakenly thought to be sick, or a citizen who summons a fire truck because he erroneously thinks his neighbor’s house on fire or a bank employee who in honest error believes the bank is about to be robbed, should not be held liable if there is nothing more than simple negligence, even though it may be said that a prudent person using due care under each of these circumstances would not have given an alarm. No legal duty is imposed upon a person to summon emergency vehicles for a sick friend, or a neighbor whose house is afire, or a robbery victim. Fear of being sued for simple negligence will deter a volunteer in derogation of the public interest. I would declare, therefore, that mere negligence is not sufficient as a basis for recovery in false alarm cases. This is analogous to the immunity afforded merely negligent drivers in guest passenger cases. (Section 46-801).
The legislature has frowned by criminal statute upon one who wilfully, maliciously or mischievously gives a false alarm, and I would not hesitate to rule that one who wilfully (as alleged in the complaint) gives a false alarm be held liable for the consequence of his misconduct. The term wilful implies at least some degree of wrongful intention; it is the person who gives an alarm knowing it to be false whom I would hold liable. Such would include the Halloween prankster and those giving false alarms during riots.
It can be logically argued, as held by the trial court below, that one who gives a false alarm should not be expected to foresee that his acts would likely bring some injury to some person. It can also be logically argued that one should refrain from giving a true alarm if he can foresee that some person may likely be injured. The foreseeability of danger to the public is the same whether an emergency vehicle is answering a true or a false alarm. In each instance the ve*555hide may proceed in haste as permitted by Code Section 46-291. Foreseeability is one of the criteria most often used by this and other courts in reaching the policy decision required by a determination of proximate cause in a given case. The fact that it is a much used criteria does not make it indispensable, however, and the foreseeability issue common to most tort actions should not be controlling here. There has long been % tendency in the law to remove the foreseeability limitation and to impose more extensive liability in intentional tort cases. See, e. g. Prosser, Torts, § 50 at 302 (1964). One who wilfully and intentionally gives a false alarm, well knowing that such will set in motion an emergency vehicle authorized by law to proceed in unusual haste, has, through his own misconduct, set the stage and should be held strictly accountable for injuries proximately caused by his action. It is better that a loss fall upon an intentional wrongdoer than upon an innocent victim.
When a complaint contains allegations which entitle a plaintiff to any relief on any theory stated therein, it becomes the duty of the trial judge to overrule a demurrer. A reversal without specifying the theory upon which plaintiff is entitled to remain in court would leave the trial judge without guidance in disposing of the case. It is the work of the trial court to try the issues; it is the work of this court to declare the law where no rules of law have heretofore been established. Inasmuch as wilfullness was alleged against the bank employee, the demurrer should have been overruled.
Moss, C. J., concurs.