(dissenting).
I must dissent, even though I know full well my views will not prevail. I do so in the hope, perhaps futile, that someday the court will repent and restore the salutary rule of interspousal immunity which it today improvidently abrogates.
I recognize the present score card of judicial decisions supports the result reached. While the numbers are against me, some causes are so fundamentally unsound that no amount of rationalization and no volume of authority can make them right. This is one of those.
*621My objections are based solely on principles of public policy. I limit my remarks to negligent, as opposed to intentional, torts committed by one spouse against the other.
We would be better served by protecting society from such suits. While it is currently fashionable to treat the harmony of the home lightly, the family nevertheless remains the bulwark of our society. Permitting husband and wife to sue each other for negligence is inimical to the very notion of harmony and trust so important to the marriage relationship.
The majority brushes this aside by insisting any damage to the marriage has already been done by the commission of the tort. The supporting “authority” for this is Professor Prosser, whom the majority quotes with approval.
If Prosser’s opinion is limited to intentional torts, it has some validity. If Prosser means to say that an isolated act of negligence — on the highway or in the home — destroys the faith, trust, and tranquility of the marriage, his statement is simply incredible.
Several opinions have taken issue with this Prosser pronouncement. The dissent in Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566, 574 (1975) expressed disagreement this way:
The majority . , cites a statement from Prosser, Law of Torts, 4th ed. which supposedly dispenses with the doctrine of interspousal immunity upon the basis that it is based “on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed.”
Although it may be heresy to disagree with the gospel according to Prosser, nevertheless if the good professor is actually suggesting that such statement justifies the abolition of interspousal immunity in negligence cases as distinguished from intentional torts I must confess my admiration at the sine qua non of non sequiturs. See also Smith v. Smith, 205 Or. 286, 287 P.2d 572 (1955). The glaring fallacy in the majority’s utilization of Prosser . . ., is the illogical leap from intentional tort to negligence.
In Smith v. Smith, 205 Or. 286, 287 P.2d 572, 581 (1955), the Oregon Supreme Court was equally critical, when it characterized the passage in question as suggesting “the learned author [Professor Prosser] has wandered for a moment from a pattern of calm judicial analysis.”
The same sentiments, with which . I wholeheartedly agree, were expressed in the dissenting opinion in Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15, 18-19 (1957).
The majority is quick to point to the present trend toward abrogating the rule and ticks off a number of states which have done so. Actually the weight of authority is not as impressive as a mere head count suggests. In many jurisdictions this was done on the authority of specific statutes. See Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 242 N.W. 526 (1932); Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935). Others have limited liability to injuries arising out of automobile accidents. See Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1976).
Another public policy consideration rests in the opportunity for collusion and fraud implicit in such claims. The majority dismisses this as of no significance. But the opinion does not face up to the dilemma it poses. If husband and wife are real adversaries, the peace and harmony of the marriage are indeed imperiled. If they are not adversaries at all, our whole system is subverted. Neither alternative is acceptable to me.
The majority counters by saying the law is equal to the task of discovering connivance by husband and wife. This again misses the point. The proud boast that the law gets at the truth is premised on the adversary process. Take away that premise, and the conclusion goes with it. What sort of “truth” surfaces when plaintiff and defendant desperately want the same result? How do courts avoid collusion if the defendant wins by losing? As was so appropriately stated in the dissent in Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236, 240 (Mich.1971), this really results in a “joint *622venture,” with “the husband calling his insurance agent, the wife calling her lawyer and both entertaining visions of better days ahead.”
I disagree, too, with another argument advanced by the majority. It is said there is no reason to prohibit negligence actions between husband and wife because we have statutes permitting such suits “to vindicate property rights ... or for personal labor.” See §§ 597.3 and 597.16. I find that supports my argument, not the majority’s. These claims are permitted because there is a statute. The legislature has remained significantly silent in the personal injury tort field.
Today’s case involves an airplane accident. Frequently such claims are the result of automobile mishaps. However, the implications of the majority opinion far transcend the immediate holding. It extends to countless day-to-day husband and wife relationships, limited only by the imagination and ingenuity of the parties, neither of which is in short supply.
The possibilities are explored in Klein v. Klein, 26 Cal.Rptr. 102, 105-106, 376 P.2d 70, 73-76 (dissenting opinion) (Cal.1962), Leach, 300 S.W.2d at 18-19 (dissenting opinion), and Rogers, 539 P.2d at 573. Although by no means exhaustive, the examples there set out should give this court pause before embarking on this new course.
I cannot subscribe to a policy which turns the family dinner table into a trial rehearsal, with children choosing up sides as to which parent is right. I am told this is progress. Progress? It is a giant step toward retrogression.