(dissenting).
I respectfully dissent from the majority opinion but for reasons different from the one given by Judge Osborne in his dissent. That dissent, as I understand it, is based upon the sole proposition that the law of the place of the tort should be uniformly applied without exception. In my view, the modern trend of authority and the clear preponderance of judicial decisions of recent vintage have rejected the principle that the law of the place of the tort is an immutable, inflexible fiat by which the forum jurisdiction is bound. The rule advocated by Judge Osborne has the virtue of simplicity and promotes predictability, but with the modern weight of authority so clearly to the contrary it is my conclusion that the admittedly desirable elements of simplicity and predictability must yield to overriding policy considerations to achieve more realistic results. These results are just because they are realistic.
In my opinion, nevertheless, the pertinent issues are under what circumstances and to what extent must these elements of simplicity and predictability yield. The recent developments in the law applicable to the problem in this jurisdiction have served to obfuscate rather than to clarify what a local court should do when it is confronted with the necessity of a choice of law between that of this jurisdiction and of a foreign jurisdiction. The situation posed in the instant case is an excellent example of the general problem cast in the setting of a recurring type of specific event.
The majority opinion recites that in this wrongful death action, instituted in a Kentucky court, the plaintiff’s decedent was a resident of and domiciled in Kentucky. It also frankly admits that the defendant was a resident of and domiciled in Ohio. The trip which ultimately resulted in the tragedy commenced in Kentucky and was intended to end in Kentucky. The party whose conduct is asserted to have been negligent and caused injury on an Ohio highway was a resident of and domiciled in that state at the time of the occurrence of both the conduct and the injury upon which this action is based.
From reading the opinions of this court in the cases of Wessling v. Paris, Ky., 417 S.W.2d 259 (1967), and Arnett v. Thompson, Ky., 433 S.W.2d 109 (1968), I am at a loss to understand the statement in the majority opinion that this court is now reaffirming-the position it took in the‘'Wes-sling case. Casual reading of the two opinions to which we have just referred immediately illustrates that the Arnett case materially changed the impression given in the Wessling case.
In the Wessling case two residents of Kentucky made a trip across the bridge to New Albany, Indiana. The guest was injured. The driver host contended that the law of Indiana applied. Indiana had a guest-passenger statute the application of which, since it required careless conduct amounting to more than simple negligence, would have precluded recovery. The opinion pointed out that both the plaintiff and defendant were residents of and domiciled in Kentucky. It suggested that the Indiana policy of protecting drivers on that state’s highways from claims by passengers demonstrated an interest in protecting Indiana residents or those who sue in Indiana courts. All significant contacts concerning the standard of care emanated from Kentucky.
In the Arnett case two residents of Ohio who were married to each other were involved in an automobile accident that occurred in Kentucky. In a multi-party action, a claim was asserted by the Ohio wife against her Ohio husband. Kentucky had abolished inter-spousal immunity; Ohio had not. Under Kentucky law, the husband was subject to liability to the wife for his negligence. Under Ohio law neither could recover from the other. This court applied Kentucky law. The Wes-*831sling case was distinguished and was materially modified. In Arnett, this court appeared to commit itself to a rule that rejected both the law of the place of the tort principle and the weighing of significant contacts theory that had been espoused in the Wessling opinion but limited to “a very clear case.” According to Arnett, the proper inquiry was whether Kentucky had enough contacts to warrant applying its law. If the accident occurred in Kentucky, the Arnett opinion reasoned, there was enough contact from that fact alone to justify applying Kentucky law. Arnett also declared that if both of the parties to the action are residents of Kentucky and the only relationship of the case to another state is that the accident happened there, Kentucky has enough contacts to justify the application of Kentucky law. The Ar-nett case could have been decided but would have achieved a different result by simply applying Restatement of Confl. of Laws 2d, 169(2), which states the proposition that so far as the issue of intra-family immunity is concerned, the applicable law will usually be the local law of the state of the parties’ domicile. That result would have been, in my view, more realistic and just.
When Wessling and Arnett were written the Restatement of Conflict of Laws 2d was in tentative draft form. It has now been adopted in final form by the American Law Institute. Section 175, Restatement of Confl. of Laws 2d, states:
“In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in section 6 to the occurrence and the parties, in which event the local law of the other state will be applied.”
Section 6 embodies the choice of law principles commonly referred to as the weighing-of-contacts approach.
It seems to be that the elements of simplicity and predictability have been pushed aside too far by the majority opinion in this case. The local law of the state where the injury occurred is the first choice and should control unless with respect to a particular issue some other state has a more significant relationship according to the principles of the Restatement. This approach requires surrender of the elements of simplicity and predictability only where a state other than that of the place of injury has a more significant relationship with respect to the particular issue.
In the case before us, the public policy of Ohio was to protect hosts from the claims of gratuitous guests except in instances of aggravated forms of negligence. The defendant was a resident of and domiciled in Ohio. The Ohio statute was meant to protect him. Surely it was meant to protect him while he drove on Ohio highways. Liability insurance afforded Ohio residents could well be negotiated and charged for on the basis of that state’s law. The decision of the majority has extended a choice of law principle far beyond the general body of case law on which the Restatement principles are based and opens Kentucky as a forum which will instantly apply its own law upon any excuse whatever, regardless of policy considerations of sister states to the contrary. One would hope that the sister states do not afford residents and domiciliaries of Kentucky the same treatment in actions based upon conduct and injury in Kentucky. I, therefore, respectfully dissent and would affirm the judgment of the circuit court.
MILLIKEN, J., joins in this dissent.