dissenting: I dissented from the opinion of the court in Levesque v. Levesque, 99 N. PI. 147, for reasons there summarized. In the brief period since elapsed, I have seen no reason to change my views, although I am bound to recognize that they did not become the law of that case. “The considerations that governed me two years ago . . . have not lost their force by reason of the authority that time gives to a single decision.” Frankfurter, J., dissenting in Radovich v. National Football League, (U. S.), 77 S. Ct. 390, 396.
I respectfully dissent in these cases, not so much because of my views regarding the Levesque case, but because I think that it should not control this decision. It is a familiar rule, which finds expression in our own cases (see Standish v. Moldawan, 93 N. H. 204), that “when the policy behind a rule no longer exists, the rule should disappear.” Kaczorowski v. Kalkosinski, 321 Pa. 438, 444. As I understand Levesque v. Levesque, supra, an unemancipated minor is held disabled from maintaining an action against his father for negligence because there is thought to be an overriding public policy in this jurisdiction that parental authority and family unity should not thus be disrupted. To the cases now before the court that policy cannot apply; and hence the principle of that case should not be relied upon.
The suit on behalf of the surviving minor Deborah is brought by her mother, against the administrator of her father’s estate. The parental relationship of daughter and father has ended. The personal disability under which Deborah was placed by the Levesque case came to an end with the father’s death, and his personal immunity did not extend beyond his lifetime. Dana v. Smith, 126 F. Supp. 497; Kaczorowski v. Kalkosinski, supra. See Morse v. Trentini, 100 N. H. 153, 155. The principle is recognized *17and applied by the birthplace of the policy adopted by the Levesque case. Deposit Guar. Co. v. Nelson, 212 Miss. 335, 347. There can be no threat to parental authority in the action brought for the minor, because it is brought by the mother, in whom parental authority now resides. If there is any threat to family unity, it will arise from denial of such compensation as will make the child whole again. See Prosser on Torts (2nd ed.) s. 101, p. 676. The defendant administrator is indemnified by insurance which presumably protects him from liability to pay damages “to others” including the minor child of the named insured. RSA 268:1 VII. The public policy relied upon in Levesque has no relation to the action brought for Deborah Worrall, and the plaintiff should be- permitted to maintain it.
In the second action, brought by the mother to recover for the wrongful death of the minor child Lynn, there is even less justification for relying upon the doctrine of the Levesque case. The action seeks damages which by statute belong to the mother alone. RSA 556:14; 561:1; Burke v. Burnham, 97 N. H. 203, 208. See Restatement, Conflict of Laws, s. 393; Ghilain v. Couture, 84 N. H. 48. An action for negligence by a married woman against her husband is maintainable in this jurisdiction. Lumbermens Cas. Co. v. Blake, 94 N. H. 141, 145, and cases cited; Priddle v. Insurance Co., 100 N. H. 73. Certainly she can be under no incapacity to maintain such an action against her husband’s estate. No more can she be under a disability in acting as administratrix of her daughter’s estate, where the action is for her own benefit individually. I see no justification for applying the Levesque doctrine to such a case.
The negative action taken by the Legislature and by one of its committees since the decision of the Levesque case should not be regarded of particular significance in the decision of these cases. Now that the breach in the protection furnished by the Financial Responsibility Act (RSA ch. 268, supra) is further widened, a greater challenge may be offered to the Legislature. If not, the public must depend upon the insurers themselves to provide a coverage for parents who wish to protect their children against the consequences of their negligence, just as such protection has recently been offered against injury through the negligence of other uninsured operators.
In my opinion the exception of the plaintiff should be sustained in each case.