(concurring in reversal). I concur in the results reached by Justice Theodore Souris and express herein some limits to my concurrence.
In its broad sweep, the reasoning in Justice Souris’ opinion goes well beyond the necessities of the 3 cases. Although in some situations, this may be good judicial craftsmanship, I doubt its value in this kind of gate-opening decision. In this situation, it has the effect of a broad “come-one, come-all” invitation. The opinion will likely be construed as erasing, in the ultimate analysis, interspousal immunity in every conceivable type of tort case, from the grossest intentional tort down to the chronic irritants present in many marriages. I wish it to be understood, then, that in concurring in the holding of Justice Souris’ opinion, I am not voting for the abolition of all interspousal tort immunity in Michigan, but for the specific result in the cases before us.
Each of the 3 eases brings some special merit why the old rule should not apply. In Smith v. King, where the marriage no longer exists by reason of the car accident which was fatal to the husband and which seriously injured the wife, the old reasoning is not persuasive. In this case, plaintiff alleges that she received multiple fractures, severe internal and external injuries, and permanent damage by reason of her deceased husband’s “wilful and wanton misconduct.” The misconduct consisted in part of the husband’s insistence upon driving from *574Michigan to California “nonstop”, at least without proper rest. It is also alleged that he failed to heed warnings, refused assistance and operated the car at a dangerous and unlawful speed. It is my opinion that she ought not to be barred from presenting proofs in support of her allegations and recovering her damages if she should prove her case. The public policy reason is inapplicable in this situation because there is no marriage to defend.
In Mosier v. Carney, suit was brought to recover damages on behalf of the children only* for the loss of their mother who died in a car accident, allegedly caused by the gross negligence of the father and the concurring negligence of another driver. If such can he proved, I see no reason for denying to the children compensable damages which they would otherwise receive if the negligent driver had been a stranger.
As to Dood v. Mosher, the injury complained of occurred before marriage and allegedly resulted-in plaintiff losing six months from gainful employment. The fact that the parties were married about a year after the injury should not extinguish the right to sue and recover. And although I fully recognize that the likelihood of collusion rises sharply if there is an identity of economic interests, I am certain that the fact finder will scrutinize such claims with care where plaintiff and defendant are husband and wife and have a substantial identity of economic interest.
Albeit, I am in sympathy with the basic tone of the opinion of Justice Nelly who thinks that this new branch of tort liability could be better delin*575eated by the legislature. I differ, however, in his conclusion that because there are so many ramifications we would be better off doing nothing in the cases before us and leaving the whole question to the legislature. Of course, the legislature may or may not act. Courts do not have the same options; they must render judgments between the parties. Cases may not be assigned to committees. Therefore, when, as here, parties call upon us for decision, the matter being within our jurisdictional competence, we must decide.
Because of the many facets to this problem, several resting in existing statutes, it is my hope that the public will again receive the benefit of wholesome, positive, constructive interaction between the judicial branch and the legislative branch. If inter-spousal and intrafamily liability is to be broadened in keeping with expanded appreciation of the individuality of members of a family, particularly wives and children, a number of statutes will have to be re-examined. The priority question is, of course, to what extent shall intrafamily suits be permitted? For intentional torts only? If so, for what kind, gross or minor? Or for both? Is any distinction to be made between duties arising strictly out of the marriage or family relationship and duties owed generally from one person to another? Shall suit be barred if the parties are still in a viable family relationship? The answers to these and similar questions will dictate to what extent contemporaneous adjustments are necessary in other statutes touching upon related aspects of family law.
What we decide today, although somewhat less than a modest first step, is not earth shaking. It is a sound beginning into a realm like no other — the *576family. It is best that we proceed from here with caution.
I do not perceive that the husband, who is a benefieiary under the wrongful death aet, could recover if his wrong contributed to the wife’s death, although the legislature should amend the act to say so, specifically.