specially concurring.
I concur in the result reached by the majority under the binding precedent cited in the majority opinion.1 However, at least to the extent of the claim presented here, that precedent should be reexamined.
The spousal immunity rule is a creature of the common law. It is rooted in a legal fiction that a husband and wife are united as a legal entity under the direction and control of the husband. At common law, a wife could not act legally without her husband’s consent, nor could she sue him in tort, no matter how egregious the conduct giving rise to her claim. *721Erosion of the fiction began with the passage of Married Women’s Acts in the early nineteenth century, which gave married women a legal status apart from their husband’s.2 Concomitant with that erosion was the development of public policy in favor of immunity.3 See Garlick, Interspousal Tort Immunity: An Analysis of the Law in Oregon and Washington, 8 Will L J 427 (1972).
Jurisdictions retaining spousal immunity advance a variety of arguments favoring retention, including: (1) unity of spouses on marriage; (2) promotion of family harmony; (3) prevention of collusive or fraudulent claims by spouses; (4) prevention of a large increase in “trivial” claims; (5) adequate redress for injury provided by domestic relations and criminal courts; and (6) the legislative prerogative in abolishing spousal immunity. See Boblitz v. Boblitz, 296 Md 242, 462 A2d 506, 513 (1983); Moore, The Case for Retention of Interspousal Tort Immunity, 7 Ohio NUL Rev 943 (1980). None of those arguments justifies the denial of a civil remedy on the evidence here.
The common law notion of marital unity gives little support for retention of immunity on these facts. It perhaps served a function in denying legal equality to women, but that injustice has been remedied. See Apitz v. Dames, 205 Or 242, 262, 287 P2d 585 (1955); Davis v. Davis, 657 SW2d 753, 754 (Tenn 1983).
The arguments that the rule promotes family harmony and that adequate redress is provided through domestic relations and criminal courts fall of their own weight. Certainly criminal or dissolution action by one spouse against the other have no less an effect on family harmony than civil *722litigation. Further, spouses may now sue each other for injury to property, breach of contract and intentional torts. Barring action by an injured spouse serves only to deny that person compensation for injuries sustained through the negligence of another. It is the wrongful act, not the subsequent litigation, that causes most familial disharmony. Indeed, knowledge that one may be sued for committing a negligent tort against one’s spouse should serve to increase vigilance and to deter such conduct when spouses interact. See Immer v. Risko, 56 NJ 482, 267 A2d 481, 488 (1970). Interspousal tort claims often arise from activity, such as operating an automobile, where the defendant spouse has liability insurance. With the threat of financial ruin removed, it is less likely that disharmony will result from litigation. See Tubbs v. Dressier, 435 So2d 792, 793 (Fla 1983) (immunity waived to extent of negligent spouse’s insurance).
As for the fear that trial courts will be deluged with trivial claims, there is no more incentive for spouses, absent collusive actions, to bring trivial actions than for the population generally. See Richard v. Richard, 131 Vt 98, 300 A2d 637, 641 (1973). Preventing collusive or fraudulent claims is important. See Smith v. Smith, 205 Or 286, 311, 287 P2d 572 (1955). Still, that does not justify the absolute bar imposed by the spousal immunity doctrine. Trial judges, attorneys and juries are quick to recognize collusion and fraud. The jury, the polestar of our legal system, should not be underestimated. To say that an action should not be allowed because of the possibility of collusion or fraud is to denigrate the merits of our jurisprudence. See Coffindaffer v. Coffindaffer, 244 SE2d 338, 343 (W Va 1978). Further, it is not always in the defendant-spouse’s interest to admit liability, especially when a third party is involved, as is common in negligence actions. In that situation, insurance companies may expect that their insureds will cooperate in the defense of claims. To the extent that insurers’ liability is increased by allowance of inter-spousal suits, the increase will be reflected in premiums.
A final justification used for spousal immunity is that any change should be left to the legislature. See Chaffin v. Chaffin, 239 Or 374, 390, 397 P2d 771 (1964). The immunity is of common-law origin. Created by the courts, they may properly lay it to rest. As Chief Justice O’Connell stated in his dissent in Chaffin v. Chaffin, supra, 239 Or at 391:
*723«* * * [W]e should abolish the doctrine of spousal and parental immunity in this state under the circumstances of this case. Practically everyone who has written upon the subject concludes that the reasons advanced in the cases for employing these doctrines are unconvincing. * * * In the present case the court does not answer the arguments for the abolition of these doctrines but simply rests its decision on the ground that we should follow precedent and that any change should be made by the legislature. I do not subscribe to this • philosophy of judicial inertia. We, not the legislature, are responsible for creating the rule of immunity in these cases; we should be as ready to cast the rule aside if it cannot be defended.”
See also Hungerford v. Portland Sanitarium, 235 Or 412, 414, 384 P2d 1009 (1963) (abrogating doctrine of charitable immunity).
The American Law Institute favors abrogation of the immunity. Restatement (Second) Torts § 895F (1979), states:
“(1) A husband or wife is not immune from tort liability to the other solely by reason of that relationship.
“(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the marital relationship, is otherwise privileged or is not tortious.”
Comment/to the section states:
“The last two decades have witnessed the definite rejection and abolition of the immunity between husband and wife in its entirety in a substantial number of jurisdictions. Numerous courts have followed a dissenting opinion of Mr. Justice Harlan in Thompson v. Thompson, (1910) 218 U.S. 611, and have held that the Married Women’s Acts and the position of equality in which they were intended to place the spouses have removed all reason and justification for the immunity, and that one spouse is subject to liability to the other for any tort whether it is to property or to the person. The number of these decisions has been on the increase in recent years and has been encouraged by the spread and general use of liability insurance, particularly in automobile cases. The indications are clear that this is the future state of the law in all states.”
Dean Prosser concluded that, in view of recent decisions concerning the doctrine, there is “no possible justification for *724it except that of historical survival.” Prosser, The Law of Torts, § 122 (4th ed 1971).4
Most states have abrogated spousal immunity in whole or in part.5 Oregon has abrogated it for. intentional torts. Apitz v. Dames, supra. This is an appropriate time for the Supreme Court to consider abrogating it on this evidence, or completely. Justice Brand put it succinctly in Apitz v. Dames, supra, 205 Or at 270:
“It is the virtue of the common law that as mores change, the law will also change. An old rule is eroded and a new rule attaches to the body by accretion.”
In Winn v. Gilroy, 296 Or 718, 681 P2d 776 (1984), the Supreme Court partially abrogated the parental immunity rule in holding that parents are not immune from liability for injury to their children caused by a parent’s negligent driving while intoxicated.
See ORS 108.010, et seq; see also Oregon Constitution, Art XI, § 5; General Laws of Oregon (Deady), 1845-1864, ch 1, § 30, p 145; 1 Codes and Statutes of Oregon, ch III, §§ 30, 31 (Bellinger and Cotton 1902).
In Thompson v. Thompson, 218 US 611, 619, 31 S Ct 111, 54 L Ed 1180 (1910), the Supreme Court refused to interpret the District of Columbia’s Married Women’s Act as abrogating spousal immunity. Noting the strong public policy favoring family harmony, the court held that a spouse could seek redress for personal injury through the criminal law or the divorce courts, but not by a civil action for damages. The untenability of that holding, as demonstrated in Justice Harlan’s dissent in Thompson, led several states specifically to abolish spousal immunity for intentional torts. See, e.g., Brown v. Brown, 88 Conn 42, 89 A 889 (1914); Crowell v. Crowell, 180 NC 516, 105 SE 206 (1920).
Many writers have criticized the rule. See, e.g., 1 Harper and James, The Law of Torts §§ 8,10 (1956); McCurdy, Personal Injury Torts Between Spouses, 4 Vill L Rev 303 (1959); Young, A Job Half Done: Florida’s Judicial Modification of the Intrafamilial Tort Immunities, 10 Fla St U L Rev 639 (1983); Brinker, Interspousal Tort Immunity in Missouri, 47 Mo L Rev 519 (1982); Querna, Freehe v. Freehe: The Abrogation of Interspousal Tort Immunity in Washington, 10 Will L J 287 (1974); Note, 30 Kan L Rev 611 (1982); Note, 11 Cap U L Rev 881 (1982); Note, 13 Creighton L Rev 423 (1979); Comment, 11 Suffolk U L Rev 1214 (1977); Comment, 27 Ohio St L J 550 (1966).
Twenty-nine jurisdictions have fully abolished the rule: Alabama: Penton v. Penton, 223 Ala 282, 135 So 481 (1931); Alaska: Cramer v. Cramer, 379 P2d 95 (Alaska 1963); Arizona: Fernandez v. Romo, 132 Ariz 447, 646 P2d 878 (1982); Arkansas: Leach v. Leach, 227 Ark 599, 300 SW2d 15 (1957); California: Klein v. Klein, 58 Cal2d 692, 26 Cal Rptr 102, 376 P2d 70 (1962); Colorado: Rains v. Rains, 97 Colo 19, 46 P2d 740 (1935); Connecticut: Brown v. Brown, 88 Conn 42, 89 A 889 (1914); Indiana: Brooks v. Robinson, 259 Ind 16, 284 NE2d 794 (1972); Kentucky: Brown v. Gosser, 262 SW2d 480 (Kentucky 1953); Maine: MacDonald v. MacDonald, 412 A2d 71 (Maine 1980); Maryland: Boblitz v. Boblitz, 296 Md 242, 462 A2d 506 (1983); Michigan: Hosko v. Hosko, 385 Mich 39, 187 NW2d 236 (1971); Minnesota: Beaudette v. Frana, 285 Minn 366, 173 NW2d 416 (1969); New Hampshire: Gilman v. Gilman, 78 NH 4, 95 A 657 (1915); Nebraska: Imig v. March, 203 Neb 537, 279 NW2d 382 (1979); New Jersey: Merenoff v. Merenoff, 76 NJ 535, 388 A2d 951 (1978); New York: State Farm Mut. Auto. Ins. Co. v. Westlake, 35 NY 2d 587, 364 NYS 2d 482, 324 NE 2d 137 (1974); New Mexico: Maestas v. Overton, 87 N M 213, 531 P2d 947 (1975); North Carolina: Crowell v. Crowell, 180 N C 516, 105 SE 206 (1920); North Dakota: Fitzmaurice v. Fitzmaurice, 62 ND 191, 242 NW 526 (1932); Oklahoma: Courtney v. Courtney, 184 Okla 395, 87 P2d 660 (1938); Pennsylvania: Hack v. Hack, 495 Pa 300, 433 A2d 859 (1981); South Carolina: Pardue v. Pardue, 167 S C 129, 166 SE 101 (1932); South Dakota: Scotvold v. Scotvold, 68 S D 53, 298 NW 266 (1941); Tennessee: Davis v. Davis, 657 SW2d 753 (Tenn 1983); Utah: Stoker v. Stoker, 616 P2d 590 (Utah 1980); Washington: Freehe v. Freehe, 81 Wash2d 183, 500 P2d 771 (1972); West Virginia: Coffindaffer v. Coffindaffer, 244 SE2d 338 (W Va 1978); Wisconsin: Wait v. Pierce, 191 Wis 202, 209 NW 475 (1926).