concurring in part and dissenting in part.
I disagree with the majority for the same reasons that prompted me to dissent in Smith v. Kauffman, Adm’r., 212 Va. 181, 183 S.E.2d 190 (1971) this day decided, which overturned the parental immunity rule in automobile accident cases.
The majority have concluded that in the same class of cases the immunity heretofore enjoyed by one spouse from personal injury or death actions initiated by the other should also be eliminated. This decision, overruling Keister’s Adm’r. v. Keister’s Ex’r., 123 Va. 157, 96 S.E. 315 (1918), appears to me to be a particularly unwarranted exercise of legislative powers by this court on a question of public policy.
In Keister, we held that the legislature, in removing a married woman’s disabilities by Acts of Assembly 1900, Ch. 1139 (now Code § 55-36), nevertheless did not give her the right to sue her husband for a personal tort. Therefore, under the common law fiction of the identity of husband and wife, no such action could be maintained. Conceding that this fiction is outmoded I would nevertheless leave it to the legislature to grant the right of action whenever and to the extent it may be deemed proper in the public interest.
Contrary to the views of the majority I am convinced that abrogation of the immunity rule as between husband and wife will result in fraud and collusion or, in contested cases, directly contradictory testimony between members of the same family. Nor, in my opinion, is the fact that almost universal liability insurance coverage gives reasonable assurance that family finances will not be jeopardized a compelling reason for this sharp break with the principles of stare decisis to which we have adhered in the past. In any event, the arguments suggesting that at this time the immunity rule is obsolete because the avoidance of collusion and of disruption of family harmony are no longer as desirable as the right to compensation should be addressed to the legislature.
I would affirm the ruling of the trial court on this point.