(dissenting). Three appeals have been presented to this Court involving different facts, but all three have two things in common: (1) They are based on one spouse’s claim of right to recover damages from another spouse for negligent injury; and (2) Reversal of the trial courts will require changing the present interspousal tort immunity law and making that change retroactive.
Justice Souris has called attention that four times this Court has held that an interspousal tort action could not be maintained at common law, but does not comment on legislative change of the common-law rule. Therefore, this opinion shall first review the legislative enactments which have granted statutory rights to sue that were prohibited by the common law.
The first statutory exception to the common-law rule in Michigan occurred in 1855 when the legislature by Act No 168 provided:
“Actions may be brought by and against a married woman, in relation to her sole property, in the same manner as if she were unmarried.” (Emphasis supplied.)
The phrase “in relation to her sole property” made it clear that the legislature gave no right to a married woman to sue her husband for recovery of damages for injury resulting from an interspousal negligent tort.
In 1857 (PA 1857, No 132), the legislature gave to a married woman certain rights with respect to her husband’s property by amending the statute, and this Court construed this amendment in Bandfield v. Bandfield, 117 Mich 80 (40 LRA 757, 72 Am St Rep 550), definitely establishing that it did not *577create in a wife any rights to recover damages for personal injury from her husband.
In Harvey v. Harvey, 239 Mich 142, Justice Wiest, writing for a unanimous Court, held that PA 1915, No 314, ch 12, § 6, which provided, “Whenever a cause of action shall accrue to, or arise against any married woman, she may sue or be sued in the same manner as if she were sole,”1 did not give plaintiff wife the right to recover damages from defendant husband for injuries she received by his negligence, stating (p 148) that in construing a statute in derogation of the common law it is presumed the legislature had the common law in mind when it enacted the statute and, therefore, the statute will be read along with the provisions of the common law; that the statute under consideration only authorized suits when the cause of action “shall accrue to” her and because under the common law no cause of action in tort can or did “accrue” to her and because there is no statutory authorization for such cause of action in Michigan, either express or implied, she could not maintain her action in tort.
The provision relative to married women contained in the revised judicature act, reading: “Actions may be brought by and against a married woman, as if she were unmarried,”2 is a rephrasing of the previous statute. It did not change the previous immunity doctrine; was not given retroactive effect, and could not apply to the present appeals where all three claimed torts occurred previous to its effective date of enactment.
Nothing in the common law or statutes justifies appellants’ cause of action, and Justice Souris does not call attention to provisions of the common law *578ór the statutes to come to Ms conclusion, but frankly states:
“WMle most of the cases cited in tbe appendix wMcli have rejected the common-law doctrine purport to base their holdings upon so-called married women’s acts, it is evident from many of the opinions that the courts had concluded that the immunity defense no longer had any valid basis in logic, fact, or policy. The fact that virtually the same statutory language is subject to varying interpretations by these courts suggests strongly that the actual basis for many of their decisions is a reappraisal of the common law and its rejection because no longer applicable to the facts of modern civilization.
“We shall pursue a more forthright course in our disposition of the cases at bar. Since the doctrine of interspousal tort immunity is a creation of the common law and since such doctrine has never been codified in this State, it is our duty to re-examine it [the common-law doctrine of interspousal tort immunity] and, if necessary to avoid continuing injustice, to change it.”
In this dissent I am not taking issue with Justice Souris’ statement in re this Court’s right, as to the common-law doctrine of interspousal tort immunity, to “if necessary to avoid continuing injustice, to change it,” nor am I agreeing or disagreeing with the changes my Brother recommends which I feel confident followed extensive survey and thoughtful consideration.
Conceding that this Court possesses the right, I believe that the question as to whether injustice is being perpetrated and, if so, to what extent, should be answered by Michigan’s 148 legislators rather than by a majority of our Court of eight. I find support to this conclusion in the amicus curiae brief which states “that because of the many ramifications which the abrogation of the rule of interspousal *579immunity would have upon society as a whole that it is a matter which should be left to the legislature’s determination.” (Quotation sustained by Kennedy v. Camp [1954], 14 NJ 390 [102 A2d 595]; Smith v. Smith [1955], 205 Or 286 [287 P2d 572], and Brawner v. Brawner [Mo 1959], 327 SW2d 808, certiorari denied 361 US 964 [80 S Ct 595, 4 L ed 2d 546].)
The briefs submitted in these appeals bring into focus one phase of the “many ramifications” and differences of opinion as one contemplates extending the immunity doctrine for the first time in Michigan into the field of torts.
One appellant3 states:
“The presence of liability insurance prevents impairment of domestic tranquillity. With the advent of liability insurance in automobile cases there seems no reason to continue the doctrine of immunity in those cases still retaining it. The modern law suit is against the insurance company, not the spouse.”
Another appellant4 quotes the following footnote from 43 ALR2d 632, 649:
“In connection with the New York statute permitting a wife to sue her husband for personal injuries, it may be noted that at the same time, the New York legislature enacted a companion statute providing that no insurance policy theretofore or thereafter issued should be deemed to insure against any liability of an insured for injuries to his or her spouse or for injury to property of his or her spouse, unless express provision for such insurance was included in the policy,”
and concludes: “This would seem to adequately protect against what some of the courts have feared *580would amount to a ‘raid’ against an insurance company in interspousal actions.”
One amicus curiae brief states:
“Rather than being a reason for not permitting suit, it is submitted that the availability of insurance is a reason in favor of abolishing immunity. In Bandfield v. Bandfield the strongest objection to interspousal tort actions appeared to be that they would ‘destroy the sacred relation of man and wife.’ 117 Mich 80, at 82. But, as pointed out by 1 Harper and James, Law of Torts, § 8.11, p 649, ‘where there is insurance protection, there is no menace either to family discipline or to domestic peace.’ ”
The other amicus curiae brief disagrees and answers that “to permit such actions because of the presence of insurance is to encourage collusive suits,” and quotes from the 1955 Oregon supreme court opinion in Smith v. Smith, 205 Or 286, 310, 311 (287 P2d 572, 583), as follows:
“The minority rulings brush aside the risk of collusion by the husband and wife by the simple assertion that the courts know how to deal with collusive suits. But it is obvious that the risk of collusive action increases when the parties plaintiff and defendant are in confidential relationship. The risk of financial loss is ordinarily inducement enough to encourage a sturdy defense. Remove from a defendant the risk of loss and substitute the covert hope of profit and a situation arises which should give us pause. * * * We revere the jury system as the bulwark of individual liberty, but we are also realists, and we know that juries are, as a Kentucky mountaineer once said — ‘tolerable generous with other people’s money,’ especially when the aroma of insurance permeates the courtroom.”
Michigan’s interspousal tort policy does not place it in the column of “minority” States, as is emphasized in the amicus curiae brief opposing reversals, *581which states: “Two out of every three jurisdictions in this country bar suits between spouses to recover damages for injuries caused by negligence. Note, 13 Drake LR 160, 164 (1964).”
This is true in regard to antenuptial torts. In our present Dood v. Mosher appeal, Kent county Circuit Judge Stuart Hoffius made this point when he stated:
“I see no reason for having Michigan join the minority of the States which have ruled upon this question. If one spouse cannot bring a tort suit against the other spouse for an event occurring after marriage, the same public policy should prevent the action for torts arising prior to marriage. The common-law rule must still prevail.”
That Michigan will join the minority if this Court reverses the Kent county circuit judge is further disclosed by the recent 1961 Maryland decision5 involving a spouse’s right to sue a spouse for antenuptial tort, which states:
“The only feature of the instant case that has not been specifically passed upon by our prior decisions is that the alleged wrong occurred before the marriage of the parties. It is generally held, in jurisdictions that deny a spouse the right to sue the other spouse for personal injuries, that the disability obtains, notwithstanding that the wrong for which recovery is sought was a premarital one. Dean Prosser states that some two-thirds of the courts which have considered the emancipatory statutes have refused and still refuse, to construe the same so as to alter the common-law rule; that it is the prevailing view that neither spouse may maintain an action against the other for negligent injuries; and this is true even though the tort was committed before the marriage of the parties. For a collection *582of some of the cases so holding, see annotation, 43 ALR2d 642. It has been held that a spouse cannot maintain such an action even where the wrong was committed, and action brought, before marriage.
“There can be little doubt that a wife could not, at common law, sue her husband for personal injuries inflicted upon her person before marriage, the rule being usually stated that the marriage extinguished her right of action. 41 CJS, Husband and Wife, § 396; 27 Am Jur, Husband and Wife, § 589; and cases there cited. As we have so definitely and flatly held that neither section 56 nor any other statute that has been called to our attention has removed the spousal disability, we feel impelled to follow our previous decisions (and the great majority of jurisdictions elsewhere) and to hold that the wife’s cause of action was extinguished upon her marriage to the defendant, and, consequently, the trial court was correct in sustaining the demurrer to her declaration.” (Emphasis supplied.)
This precise antenuptial question was also recently (1962) before the Pennsylvania supreme court,7 and the court, denying the wife the right to maintain her antenuptial tort action, commented upon the common law and the Pennsylvania statutes as follows:
“At common law neither a husband nor wife could sue the other for injuries due to torts committed before or during their marriage. This was based upon the legal premise that a husband and wife are one person, one entity. See, Prosser on Torts (2d ed), 670 (1955). This rule, now based upon social reasons and public policy (emphasis supplied), is still followed in a great majority of jurisdictions in the United States. See 43 ALR2d 632; 18 Pennsylvania Law Encyclopedia, Husband and Wife § 82. The same rule has been always strictly adhered to *583in this Commonwealth. However, here in Pennsylvania, it is both statutory and decisional.”
In reversing Genesee county Circuit Judge Donn D. Parker, in Mosier v. Carney, my Brother was confronted with the provisions of the wrongful death act, which provides:
“Whenever the death of a person or injuries resulting in death, shall he caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who * * * would have been liable, if death had not ensued, shall be liable to an action for damages.” CL 1948, § 691.581 (Stat Ann 1959 Cum Supp § 27.711).
Calling for a liberal construction, my Brother concludes that plaintiff should not “be defeated merely because earlier cases in this Court indicated that had decedent survived she would have been barred from suing her husband,” and quotes from a Minnesota supreme court decision8 to sustain his conclusion.
If our legislature overlooked the interspousal tort immunity provision when it enacted the wrongful death act, that error should be corrected by the legislature rather than for this Court to come to such a conclusion and then try to eliminate such error by a liberal construction.
Solely to show that there is disagreement to the Minnesota decision quoted by my Brother to sustain his conclusion in Mosier, I call attention to the recent 1964 Delaware decision:9
“In summary, therefore, as recognized by plaintiff, the rule of immunity from suit is well settled in this *584jurisdiction and would have prevented Mrs. Loat from maintaining a personal injury action, had she lived, and does prevent her administrator from maintaining a survival action. Plaintiff has been unable to show any express language in the wrongful death statute which indicates a legislative intention to abrogate the common-law rule of immunity from suit. In fact, the statute supports the opposite conclusion, since the statute presupposes the ability of the decedent to have brought a personal injury action had he lived.”
This Court, recognizing the importance of this three-case appeal from three different counties, requested that the negligence section of the Michigan State Bar “file a brief amicus curiae.” The response, disclosing an extensive survey of public policy throughout the Nation, has rendered a valuable service to this Court and I join Justice Souris in expressing our sincere thanks.
The fact that our request for “a brief amicus curiae” resulted in two briefs amicus curiae is important in deciding whether the doctrine of inter-spousal tort immunity is “no longer applicable to the facts of modern civilization,” and whether, as my Brother states, “it is our duty to re-examine it and, if necessary to avoid continuing injustice, to change it.”
My Brother refers to the two briefs by stating: “Indicative of the present ambivalence of thought upon this question is the fact that two briefs were in fact submitted by the bar.” I add to that by stating that the width, depth and importance of the subject matter, and different views as to what, if anything, should be done and by whom for Michigan, is disclosed by these two briefs as illustrated by the following :
The brief recommending “that the doctrine which prevents husband and wife from suing one another *585to recover damages for personal injuries inflicted by the other be overruled, retroactively,” calls “for the extermination, root and branch, of the wayward interspousal immunity doctrine — irrespective of the factual variations,” and states that: “The overwhelming weight of scholarly authority rejects the doctrine of interspousal immunity; the current trend of judicial authority also rejects it.”
The amicus curiae brief that concludes “no change in the rule of interspousal immunity (should) be made by the Court,” states that: “Contrary to the charge that the rule of interspousal immunity is a moss-encrusted fossil carried over from the days of Coke and Blackstone, the modern decisions in support of the rule range in point of time from 1927 to as recently as July of 1964. Several reasons have been given by the courts in support of the rule. The majority of the courts hold that to abrogate the rule would introduce disharmony into the home, the family unit, and thereby disrupt domestic peace and accord.”
To emphasize that as we leave the days of “Coke and Blackstone” and enter into the days of “modern civilization” State legislatures cannot agree, I call attention to legislative action in the two large and important States of New York and Illinois.
In New York interspousal tort suits are authorized by statute, but no collections may be made from an insured defendant spouse unless the policy of insurance contains provisions to so insure.10
In Illinois the legislature, after the supreme court in 1953 held that in all cases a married woman may sue as if she were unmarried, subsequently added to the Illinois married women’s act the legislative provision “that neither husband nor wife may sue the *586other for a tort to the person committed during coverture.”11
Legislative changes in regard to interspousal torts would undoubtedly apply to the future and not to the past, and would be in sharp contrast to the change in law my Brother is advocating today, which would apply to two automobile accidents occurring on August 22, 1958,12 and July 4, 1960,13 respectively, and for injury sustained by stepping on a nail that occurred on May 16, 1982.14
My Brother does not grant the amicus curiae request for “extermination, root and branch, of the wayward interspousal immunity doctrine,” but at the conclusion of his opinion states: “What we have said here concerning the doctrine of interspousal tort immunity must be considered in light of these same fact circumstances.”
The impact of such a recommendation does not, in my opinion, appreciably lessen the impact that would have been caused by a complete extermination because: (a) It is notice to all that the immunity tort doctrine which has existed since Michigan became a State is now vulnerable to attack and that this Court can change the immunity doctrine as it sees fit; and (b) It is an announcement that this Court will consider all appeals for claimed interspousal tort injury according to the facts of each case, not only as they arise in the future, but as they have arisen in the past.
The Kent, Oakland, and Genesee circuit judges who entered the orders of dismissal properly applied the law and should not be reversed.
The orders should be affirmed. Costs to appellees.
CL 1915, § 12357; CL 1948, § 612.6 (Stat Ann § 27.658).
PA 1961, No 236, § 2001 (CLS 1961, § 600.2001 [Stat Ann 1962 Rev § 27 A.2001]).
Mosier v. Carney.
Dood v. Mosher.
Hudson v. Hudson, 226 Maryland 521, 526, 527 (174 A2d 339, 341, 342).
Referenee is to Annotated Code of Maryland (1957), art 45, § 5.
Meisel v. Little, 407 Pa 540, 548 (180 A2d 772, 773).
Poepping v. Lindemann (1964), 268 Minn 30 (127 NW2d 512).
Saunders v. Sill (1964), — Del —, — (202 A2d 807, 810).
Consolidated Laws of New York, vol 23A, General Obligations Law, § 3-313, and vol 27, Insurance Law, § 1S7, subd 3.
Laws of Illinois, 1953, p 437, § 1 (Ill Anno Stat, c 68, § 1).
Mosier v. Carney.
Smith v. King.
Dood v. Mosher.