(dissenting).
I agree with the statement in the foregoing .opinion that it “belies reality” to say that there is no tort when the husband negligently or intentionally injures his wife; but, whatever the theory our courts have, over a long period of years, imposed a strict rule of disability upon the wife forbidding her from suing the husband for torts. Apparently, the majority of states still adhere to such a rule. I think that the rule is based upon a sound public policy. It is true that this case perhaps does not violate that rule to the same extent as does the decision in Hamilton v. Fulkerson, Mo., 285 S.W.2d 642. That case was decided in Division One of this court and the writer of this opinion had no part in it.
As stated by Prosser (Torts 2nd Ed., § 101, p. 675)', the liberalizing of this rule of disability has been “encouraged by the presence of liability insurance in automobile cases * * That, to me, is a very poor reason for changing the rule. It is true that there are somewhat logical arguments in favor of. change-; but I fear that this has been influenced more, both here and in the other minority jurisdictions, by the reasons of expediency just suggested, than by the logic of the situation. Once the disability is removed, the right to sue cannot be confined to automobile negligence cases.
If the rule which we have heretofore followed is to be abruptly abandoned, I think that the change might better come from the legislature than from the courts. This face-about has far-reaching implications, and the result would seem with equal logic to permit suits by children against parents and husbands against wives. For these reasons, I dissent.
HYDE, J., concurs.