dissenting:
This case involves the common law rule of inter-spousal immunity for a negligent tort. In Kennedy v. Kennedy, 76 Nev. 302, 352 P.2d 833, this court applied the common law rule of immunity, pointing out that the legislature had not, by enacting NRS 12.020 or NRS 41.170, authorized a wife to sue her spouse for a negligent tort. We are asked to reexamine the validity of *570the common law principle in the light of today’s conditions and to abandon it as archaic and unreasonable; in short, to overrule Kennedy.
It seems to me that the reasons for discarding the rule greatly outweigh those given in its support. At the moment, the states are almost evenly divided on the question. See Annot., 43 A.L.R.2d 647 (1955) ; 36 So. Cal.L.Rev. 456 (1963). Departure from the rule is the modern trend and is advocated by eminent tort scholars. Prosser, Torts, 2d ed., pp. 670-675; Harper & James, Torts, pp. 645, 646 (1956); McCurdy, Personal Injury Torts Between Spouses, 4 Vill.L.Rev. 303 (1959). The arguments for and against are fully articulated in the above citations and, more recently, in Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389 (against abolition) ; Klein v. Klein, 26 Cal.Rptr. 102, 376 P.2d 70 (for abolition); and Cramer v. Cramer, 379 P.2d 95 (Alaska 1963) (for abolition); and need not be repeated here. However, I do wish to briefly mention one phase of the total problem which, in the negligence area, persuades me to disagree with Kennedy and with the majority view in today’s case.
I am convinced that the common law rule of inter-spousal immunity encourages the trial of negligence cases and discourages settlement. There is no sensible reason for treating this case differently than the usual guest case against joint tort-feasors.1 The great bulk of court litigation today is in tort, and particularly tort cases arising out of motor vehicle accidents. By far, most of these accidents involve more than one vehicle. Consequently, when a guest is the claimant, he will seek to fasten liability upon the drivers of the colliding vehicles as joint tort-feasors and, if successful, may obtain satisfaction of judgment from either or both. The joint tort-feasors, as judgment debtors, do not enjoy any right of contribution. Gensler-Lee v. Geertson, 73 Nev. 328, 318 P.2d 1113. The result, of course, is that sometimes the tort-feasor least at fault may be required to pay the judgment. The result is justified, I suppose, *571because of the difficulty encountered in attempting to compare negligence and distribute the dollar loss as between joint defendants. This general scheme has proven to be reasonably workable. The host-defendant is protected to the extent that his liability rests upon proof of gross negligence, intoxication or willful misconduct (NRS 41.180), while the codefendant may be found liable for ordinary negligence. In any event, the situation gives rise to the possibility that two defendants may be liable to the guest. Because of this fact alone, the joint defendants (or their insurance carriers) are encouraged to settle the claim, each sharing a part of the loss. It is common knowledge, I think, that where two parties are available to share the loss, settlement is more likely than where one defendant only is involved.
Yet this general scheme, which has worked fairly well through the years, cannot be applied to the instant case, simply because the guest happens to be the wife of one of the drivers. Settlement, instead of being encouraged, is frustrated. Our law absolves the spouse-driver (host), even though grossly negligent, intoxicated, or guilty of willful misconduct, and directs the guest to sue the other driver (Kennedy v. Kennedy, supra, and today’s case) and then adds the final touch by refusing to impute the conduct of the spouse-driver to the spouse-guest to bar relief. L.A. & S.L.R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224; Fredrickson & Watson Const. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627. Settlement of such a case is not likely. The driver from whom the spouse-guest is required to seek relief is not inclined to settle, for his concurrent fault may be minor when compared to the fault of the spouse-driver. Trial is thus encouraged by applying the rule of interspousal immunity. It seems preferable to treat the spouse-guest in the same manner as any other guest. A wife or a husband should receive the same kind of justice accorded a friend or a stranger who seeks to recover from his host under the guest statute.
The possibility of collusion between husband and wife is not a sound reason for continuing adherence to the rule of immunity. Photography, scientific investigative procedures, pre-trial discovery, cross examination, etc., *572are usually adequate safeguards against the fabricated claim. Trial courts and jurors are sensitive to the “trumped up” charge. For these reasons, and for those expressed in Klein v. Klein, supra, I dissent.
Of interest is the annotation in 2 A.L.R.2d 932 regarding “Guest statute as applicable to member of family riding in car driven by another member.”