concurring specially. Speaking of intra-family immunity, Prosser has aptly said: "Few topics in the law of torts, in view of modern economic, social and legislative changes, display in their treatment greater inconsistency and more unsatisfactory reasoning.” Prosser on Torts (2d Ed.), p. 670, § 101. See also 41 ALR3d 904-980. Stare decisis has practical utility but is hardly a reason to refuse to reconsider judge-made law based only on public policy, which is among the most mutable of concepts. "Adherence to precedent must ... be the rule rather than the exception . . . [However], few rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end.” Cardozo, The Nature of the Judicial Process, pp. 34, 98. It can be *727said that few of the classical reasons stated for the immunity have any relevance to the realities of modern litigation attempted in the family area. One commentor after another has attacked the policy reasoning of domestic tranquility, parental control and depletion of the family exchequer. It is not necessary to rehash the arguments here.
The real issue is whether a viable rationale does exist for the continuation of the immunity. To answer this we must also face squarely the subject of liability insurance. It is begging the question to call it irrelevant because no legal liability pre-exists; and it is intellectually dishonest to use it as a bootstrap to create liability without more than, at best, a passing mention of it.
Realistically, we know that negligence actions between an unemancipated child and parent or between spouses would rarely, if ever, be brought unless there were insurance. We should frankly acknowledge that the vast bulk of family suits would be "friendly” (with, e.g., one parent acting as next friend against the other) and all the possibilities for collusion would be present. What we must ask is whether, in view of intolerably crowded court dockets, the already oppressive cost of liability insurance and the ready availability of other forms of insurance protection against family loss, we should add one more expensive, time-consuming, adversarial-in-form-only proceeding to our system. One modern trend may be to allow intra-family liability; but another modern trend, of much greater significance to the survival of our judicial system, is to eliminate certain inappropriate areas of the law from the courts. See Frank, American Law: The Case for Radical Reform (1969).
Considering liability insurance from another angle it ought to be perfectly apparent that a judicial declaration significantly increasing the coverage will automatically result in a steep, over-all increase in premiums. The only way to avoid this result would be to encourage the insurance companies to make actuarial studies and then offer policies in which the insured may opt, for a lower premium, to exclude family coverage or vice versa. This, however, requires *728at least decent notice to the companies and undoubtedly some changes in our insurance statutes. The result otherwise is manifestly unfair to those people who: have provided their family with life, health, accident, and disability insurance; have absolutely no desire to engage in an intrafamily lawsuit to become compensated for loss; and who do not care to pay higher rates for automobile or homeowner’s insurance for the benefit of those who do not either care one way or another or who have, most likely, given it no thought at all.
There is also another problem involved in considering immunity both in this case and in its predecessors. We have tended to forget there are two kinds of stare decisis. One is precedent in the common law and is subject to much greater flexibility in changing times. American Broadcasting &c. v. Simpson, 106 Ga. App. 230, 237 (126 SE2d 873). The other is judicial interpretation of a statute which then becomes an integral part of the statute and is subject properly to legislative change alone. See Gulf C. & S. F. R. Co. v. Moser, 275 U. S. 133 (48 SC 49, 72 LE 200); Walker v. Walker, 122 Ga. App. 545 (178 SE2d 46). Family immunity questions arise for both personal injury (common law) and wrongful death (statutory). See Horton v. Brown, 117 Ga. App. 47 (159 SE2d 489), cert. denied, 117 Ga. App. 879; Harrell v. Gardner, 115 Ga. App. 171 (154 SE2d 265). While in Horton four judges of this court dissented to the holding that children could not sue their stepfather for the wrongful death of their mother, all nine judges agreed that the family immunity doctrine applied to statutory wrongful death actions. It is true that Barnwell v. Cordle, 438 F2d 236, a Fifth Circuit diversity case arising in Georgia, conflicts with the above authorities and produces a different result in Federal diversity cases. However, the application or non-application of the Erie doctrine is a matter exclusively within the jurisdiction of the Federal courts. As we are now bound to uphold immunity by prior interpretations of our wrongful death statutes, it would be unjust and inconsistent to deny it for personal injury.
*729The case of Cox v. DeJarnette, 104 Ga. App. 664 (123 SE2d 16) is not in conflict with our holding here. It held that the doctrine of charitable immunity in Georgia was not to render the charity immune from suit but merely to see that "charity trust funds are not to be depleted by subjection to liability for negligence.” P. 670. If a charity wishes to purchase liability insurance for the sole purpose of providing non-charity trust funds to cover its negligence actions as to third persons, why should any court interpose its objection?
As to the problem of contribution, I am aware of the apparent inequitable result of applying the immunity doctrine when you have a hypothetically 90 percent negligent parent. However, this is only one of many other instances where a joint tortfeasor cannot be reached for contribution. A prime example is insolvency. Both Georgia law and the Uniform Contribution Among Tortfeasors Act recognize the principle that the right of contribution is limited to persons whom the injured could hold liable personally. Southern R. Co. v. Brewer, 122 Ga. App. 292 (176 SE2d 665); 9 U. L. A. 156. This principle is "recognized and applied with practical unanimity” throughout the United States. 19 ALR2d 1003; 34 ALR2d 1107; 60 ALR2d 1368. To hastily change the law on liability in order to achieve a more equitable means of contribution is a backward approach. The two opposing ideas must be balanced against one another. For the reasons stated above, I must adhere to our present law on family immunity. Reason and experience demonstrate that these precedents still justify their existence.
Deen, Judge, dissenting on rehearing. This case presents the same factual situation and reaches the same conclusion as Emmert v. United States, 300 FSupp. 45, 48. There a collision between a car owned by the minor plaintiffs’ father and vehicle owned by the U. S. Government resulted in an action by the children against the United States as sole defendant. The United States filed a third-party complaint against the father who was operating the vehicle in which the plaintiffs were riding. Holding that the "doctrine *730of intra-family immunity is firmly entrenched in Tennessee” the court dismissed the third-party complaint, pointing out, however, that other jurisdictions have significantly continued the trend of disfavoring the doctrine. For example, in Gelbman v. Gelbman, 23 N. Y. 2d 434 (245 NE2d 192), New York expressly abolished the defense by overruling an earlier case, Badigan v. Badigan, 9 N. Y. 2d 472 (215 NYS2d 35, 174 NE2d 718). This court could and in my opinion should do the same. As I stated in my dissent to Harrell v. Gardner, 115 Ga. App. 171, 177 (154 SE2d 265): "It thus becomes obvious that the mere fact of relationship is not of itself sufficient to deny to any party to the litigation a right which he otherwise has under the law.” We are dealing here not with statute law but with judge-made law, and we cannot lay the blame entirely on the Legislature when we persist in following anachronistic notions.
In this case it appears to me that we are doing exactly what the majority opinion rightly says cannot be done: that is, allowing to be done indirectly what cannot be done directly. Let us assume that the plaintiff’s mother, Mrs. Roney, was 90% negligent in the collision that injured the minor plaintiff. Let us assume that he can and does prosecute this case to judgment against Eschen and recovers 100% of his damages. Since Eschen is barred from an action for contribution against Mrs. Roney, he is denied recovery of the 90% of the judgment for which he was not theoretically liable, having been only 10% at fault, and therefore John Roney, who could not have recovered this sum directly from his mother has nevertheless restored it to the family treasury by the indirect method of recovering it from one who has no recourse, although the fault, as well as the injury, was intra-familial.
If, after judgment, Eschen should sue Mrs. Roney for contribution, I should like to assume that this might be done because with two lawsuits, neither involving more than one family member, this court might well hold that the "family tranquility” is not disturbed by pitting two members directly against each other in the same action. However, in *731view of the holding in Southern R. Co. v. Brewer, 122 Ga. App. 292 (176 SE2d 665) that a joint tortfeasor means one who may be jointly sued by the original plaintiff, this is obviously untenable. As to the lengths to which the family immunity doctrine can be carried, see Horton v. Brown, 117 Ga. App. 47 (159 SE2d 489).
Justice Bleckley observed in Ellison v. Ga. R. & Bkg. Co., 87 Ga. 691, 696 (13 SE 809): "With these exalted tribunals who live only to judge the judges, the rule of stare decisis is not only a canon of the public good, but a law of self-preservation. . . Nevertheless, without serious detriment to the public or peril to themselves, they can and do admit now and then, with cautious reserve, that they have made a mistake. . . Indeed, reversion to truth in some rare instances is highly necessary to their permanent well-being.” The Supreme Court of Georgia recently concurred that "the doctrine of stare decisis should not be followed to the extent that error may be perpetuated.” Humthlett v. Reeves, 211 Ga. 210, 215 (85 SE2d 25).
The law is not a dead-end street. Courts are bound by the Constitution, the statutes, and the judicial precedents, but it would be less than honest to say judicial precedents may never be re-examined, and the legislature should not in every instance be blamed because it has not corrected judicial error, which I consider the present types of application of the "family harmony” doctrine to be. I am not even sure that our own precedents do more than uphold the decision in this case in the most general way; I do not believe they constrain us to what I feel to be palpable injustice. Shell v. Watts, 125 Ga. App. 542 (188 SE2d 269) having been reversed by the Supreme Court need be of no concern to us. Let us examine the authorities upon which Division 6 was based. In Bulloch v. Bulloch, 45 Ga. App. 1 (163 SE 708) it was held that a minor under the age of 14 could not file an action for pain and suffering against his father due to simple negligence on the part of the latter. The reason given was that the child was under his father’s control, and the father was responsible for his maintenance under Code *732§§ 74-104, 74-105, and that therefore under the public policy of this State "as declared by the public laws” such a child could not bring the action against his father in an adversarial proceeding and still remain under his control. I have no quarrel with this disposition of the case when confined to its immediate framework.
Next comes Chastain v. Chastain, 50 Ga. App. 241 (177 SE 828), where a wife filed suit against’ her husband seeking damages for the death of their five-year-old child. As I read this case the decision is two-pronged: (a) Under Bulloch a five-year-old child could not sue its father for simple negligence, so no derivative right of action exists, and (b) under Heyman v. Heyman, 19 Ga. App. 634 (92 SE 25), a wife may not sue her husband on a cause of action personal to herself, so that (c) the conclusion is that no right of action, either derivative or direct, could justify the litigation.
In 1952, the Court of Appeals wisely saw fit not to extend the rule beyond (a) the child himself and (b) simple negligence. Wright v. Wright, 85 Ga. App. 721 (70 SE2d 152) holds that since a wilful or malicious act may forfeit parental control under Code § 74-108, a minor may directly sue her father for injuries sustained in an automobile collision resulting from wilful and wanton misconduct on his part. This case cites Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338 (183 SE 210), where it had already been held that "the rule is different, and such an action is maintainable, if the child was emancipated at the time of the tort and the action,” citing Hargrove v. Turner, 112 Ga. 134 (37 SE 89, 81 ASR 24); Culberson v. Alabama Constr. Co., 127 Ga. 599, 600 (56 SE 765, 9 LRA (NS) 411, 9 AC 507); Farrar v. Farrar, 41 Ga. App. 120 (3) (152 SE 278) and Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369 (2) (170 SE 549). And Stapleton v. Stapleton, 85 Ga. App. 728 (70 SE2d 156) established that an unemancipated minor might sue the father’s employer for simple negligence of the father as to which the employer could be liable only on the theory of respondeat superior, and thus collect damages based on the *733parent’s tort, so long as the suit was not brought directly against the latter. In such a case could it consistently be held that the employer, if it wished, could not sue the employee in a separate action to recover damages due to the latter’s negligence committed within the scope of his employment?
It thus appears that all State court cases to date which have considered the public policy inhibition against such actions have been limited directly to application only when there is a damage suit filed directly against a parent by a minor child who is under the power and control of that parent. Federal cases concerning themselves with Georgia law have done likewise, as illustrated by Barnwell v. Cordle, 438 F2d 236, where only the judgment, not the right of action, was curtailed.
There is no statutory law, and in my opinion no case law in this State, which prohibits the third-party action. I would accordingly reverse.
I am authorized to state that Judge Stolz concurs in this dissent.