concurring in part and dissenting in part.
The majority opinion moves this court into an unaccustomed role in deciding a question of public policy. If it were a case of first impression a more persuasive argument in support of this position might be made. But we are asked, and the majority have agreed, to reverse precedents long established and maintained, in order to eliminate parental immunity in one particular class of cases which does not involve wilful misconduct but only negligence. Beli'eving this to be unjustifiable I respectfully dissent.
I do not question the power or authority of this court to overrule the legal principle which we laid down in Norfolk Southern R.R. v. Gretakis, 162 Va. 597, 174 S.E. 841 (1934) and reaffirmed in Brumfield v. Brumfield, 194 Va. 577, 74 S.E. 2d 170 (1953). But I question the advisability of doing so. The rule could have been changed by statute at any time, our citizens, acting through their elected representatives, desired. I find it significant that the legislative branch, which, in carrying out its duties, has never been unduly reluctant to act where it has been deemed necessary in th'e public interest to reverse the effect of our decisions, has not legislated on this subj'ect. Presumably a majority of the legislators and their con*189stituents believe that the general principle of parental immunity is in accord with sound public policy. So I view with a jaundiced eye what appears to me to be an invasion of an area of responsibility more appropriately entrusted to the legislature.
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 th'e 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 the 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.
It is true that we have qualified the parental immunity rule by making exceptions where an additional relationship exists, such as master and servant (see Norfolk Southern R.R. v. Gretakis, supra) or common carrier and passenger (Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343 (1939)). Furthermore, the reasoning behind the immunity rule cannot be applied where the child has been injured by wilful misconduct of the parent and in such case a right of action should be maintainable. See Annot., 19 A.L.R.2d 423, 451. But these logical exceptions do not, in my opinion, justify eliminating the rule in the present case.
I would affirm the ruling of the trial court on this point.