¶1(dissenting).
¶2I must respectfully dissent from the opinion adopted in this case by the Court En Banc. My reasons for so doing are well stated in an opinion submitted in Division Two by Stockard, C., which, omitting the first and last paragraphs thereof, I, with his consent, adopt as my dissenting opinion. It follows:
¶3It is undisputed that at common law neither spouse could maintain an action against the other for a tort committed during coverture. Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382, 383; Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114; 41 C.J.S. Husband and Wife § 396; Harper & James, Torts, § 8.10. Therefore, if the plaintiff in this case is entitled to maintain this action against his wife, it must be because the common-law rule has been appropriately changed by statute, or if not changed by statute, then because it should be or has been changed by this court in the exercise of its inherent power to modify ancient and outmoded rules of the common law by reason of changed social conditions. See State v. Kollenborn, Mo.Sup., 304 S.W.2d 855.
¶4The common-law rule that neither spouse could sue the other was based primarily upon the historical legal fiction of unity of husband and wife with the resulting conclusion that a person could not sue himself, but the courts, particularly subsequent to the adoption of what is known as the married women’s acts, have frequently based the disability of one spouse to sue the other on a public policy to preserve or promote marital harmony and domestic peace and felicity. 41 C.J.S. Husband and Wife § 396; Patenaude v. Patenaude, 195 Minn. 523, 263 N.W. 546; Corren v. Corren, Fla., 47 So.2d 774; Annotation, 43 A.L.R.2d 632, 661-662. The universal adoption by the various states of the married women’s acts relieved wives from many of the common-law disabilities, and it was readily recognized that the Missouri act had the effect of emancipating a married woman by “endowing her with ability to sue and be sued, to manage her own property, [and] to have the earnings of her labor.” Claxton v. Pool, Mo.Sup., 197 S.W. 349, 352, L.R.A. 1918A, 512. While the courts of the various states are fairly uniform in the interpretation of these acts insofar as they pertain to property interests of a married woman, there is a wide divergence of opinion, even when the language of the statutes is substantially the same, as to whether they authorize a married woman to sue her husband or to be sued by him for what is referred to as a personal tort.
¶5The terminology of the married women’s acts varies widely between the states. Some expressly prohibit actions for personal torts between husband and wife. See Chap. 68, § 1, Ill.Ann.Stat. Others provide that no action between spouses for personal tort is thereby authorized. See § 37:2 — 5, New Jer.Stat.Ann. The largest classification of married women’s acts simply confers upon a married woman the right to sue and be sued as a feme sole. See 4 Fordham L.Rev. 475, and the classification there made of the various married women’s acts, and see also the cases collected and annotated at 43 A.L.R.2d 632. Within this group there is a wide variance between the states in interpreting the effect of this provision. For example, the statutory provision that “A woman may while married sue and be sued in the same manner as if she were unmarried” was held to authorize a suit by the wife against the husband for the use and occupation of her separate real estate, Skinner v. Skinner, 38 Neb. 756, 765, 57 N.W. 534, but not to authorize a suit for personal injuries. Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297, 56 A.L.R. 327. On the other hand, the statutory provision that a married woman “may … sue and be sued, in all matters in law and equity, and upon any contract by her made, or for any wrong by her done, as if she were unmarried,” authorized her to sue her husband for personal tort. Gilman v. Gil*817man, 78 N.H. 4, 95 A. 657, L.R.A.1916B, 907. We shall not attempt the unrewarding task of attempting to reconcile the cases in the various jurisdictions, but we shall subsequently mention a few cases from other jurisdictions where married women’s acts similar to those in this state have been construed in reference to the right of one spouse to sue the other for a personal tort.
¶6The provision of the Missouri married women’s act with which we are primarily concerned, now designated as section 451.-290 (all statutory references are to RSMo 1949, V.A.M.S., unless otherwise stated), was originally enacted in 1889, and it has remained unchanged except for a minor amendment in 1939 which is not material to the issues presented in this case. This section provides: “A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party; ….”
¶7This statute is in derogation of the common law, and it unquestionably creates in married women new rights and it removes certain common-law disabilities. We note that although it provides that a married woman may sue and be sued at law or in equity, it does not specifically provide that a wife may sue her husband or that a husband may sue his wife. On the other hand, it does not make any specific exception to the general and all inclusive language as to suits between husband and wife. Prior to the enactment of section 451.290 it was held that in some situations a wife could sue her husband in equity. Rieper v. Rieper, 79 Mo. 352. After its enactment it has been held that by reason of this statute a husband may sue his wife in equity, Abramsky v. Abramsky, 261 Mo. 117, 168 S.W. 1178; that either spouse may sue the other in replevin or conversion or for the willful or malicious destruction of the separate property of the plaintiff spouse, Shewalter v. Wood, Mo.App., 183 S.W. 1127; that either spouse may sue the other on contract, Rudd v. Rudd, 318 Mo. 935, 2 S.W.2d 585; Cole v. Cole, 231 Mo. 236, 132 S.W. 734; Rice, Stix & Co. v. Sally, 176 Mo. 107, 75 S.W. 398; Regal Realty & Investment Co. v. Gallagher, Mo.Sup., 188 S.W. 151; Hall v. Greenwell, 231 Mo.App. 1093, 85 S.W.2d 150; Montgomery v. Montgomery, 142 Mo.App. 481, 127 S.W. 118; that a wife may sue her husband in equity to recover her property, Hudson v. Wright, 204 Mo. 412, 103 S.W. 8; and that a wife may sue her husband for conversion of her property, Smith v. Smith, Mo.App., 300 S.W.2d 275. It is apparent that the absence in this statute of specific authority for one spouse to sue the other has not deterred the courts from holding that in cases in equity, and in those involving property rights, even though the suit was one sounding in tort, the statute furnished the necessary authority to abrogate the common-law rule that such suits other than those in equity between spouses could not be maintained.
¶8In 1915 there was first presented to this court the question of whether by reason of the married women’s act one spouse could sue the other for a personal tort. In Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382, 384, a married woman sought but was denied the right to maintain a suit for damages against her husband for an alleged false imprisonment. The court stated that what is now section 451.290 “definitely declares the purposes for, and the extent to which … [a married woman] shall be deemed a feme sole,” but it does not contain authority for a married woman to sue her husband for a personal tort. It was further stated that “it has never been held that he [the husband] may sue his wife for a personal tort” and what is now section 451.290, and another statute now repealed, did “not attempt to confer greater rights of action upon a married woman than are possessed by her husband.” *818Considerable reliance was placed on Peters v. Peters, 156 Cal. 32, 103 Pa. 219, 23 L.R.A.,N.S., 699, wherein it was held that a husband could not maintain an action against his wife for deliberately wounding him. An examination of the Peters case discloses that the California statute relied on did not go any farther than as stated in the Rogers case, that is, “giving her the right to separate property and permitting her to contract with him,” and that there was no provision, comparable to that in section 451.290, that a married woman could sue or be sued at law or in equity as a feme sole. In the Rogers case it was concluded that although the married women’s act of this state was “comprehensive … in effecting … [a married woman’s] emancipation from matrimonial bonds so far as her property rights and the right to contract with others and her husband is concerned, and to sue and be sued by him at law (Rice, Stix Co. v. Sally, 176 Mo. loc. cit. 128, 75 S.W. 398, and cases), and to sue alone in tort for injuries sustained by her through the negligence of others (Elliott v. Kansas City, 210 Mo. 576, 109 S.W. 627), there is no authority express or implied in the act given her to sue him for a personal tort.” This ruling appears at first reading to be based strictly on an interpretation of the language of the statute, but as pointed out in Hamilton v. Fulkerson, Mo.Sup., 285 S.W.2d 642, 644, “the reasons prompting the statutory construction there made rather than the possible and plausible contrary construction, were considerations of ‘public policy.’ ” Whatever was the underlying basis for the result there reached, this construction of the Missouri married women’s act has been consistently followed. See Rice v. Gray, 225 Mo.App. 890, 34 S.W.2d 567; Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114; Rosenblum v. Rosenblum, 231 Mo.App. 276, 96 S.W.2d 1082; Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645; Planck v. Planck, Mo.Sup., 199 S.W. 1183. We need not discuss these cases individually because they all purported to follow Rogers v. Rogers as being decisive of the question of whether one spouse was entitled to sue the other spouse for a personal tort committed during coverture.
¶9It may be contended that Rogers v. Rogers does not pertain to the precise point here because there a wife sought to sue her husband for a personal tort instead of the other way around. We see no justifiable reason to attempt to distinguish the cases on that basis. The authority contained in section 451.290 is not only to sue but to be sued at law or in equity as a feme sole. The problem we have here pertains to the right of one spouse to sue the other for personal tort committed during coverture whether the plaintiff-spouse be husband or wife. In determining this question consideration must be given not only to Rogers v. Rogers but also to two recent opinions of this court, which we shall now discuss.
¶10In Hamilton v. Fulkerson, supra, the wife sought and was permitted to sue her husband for an antenuptial tort based on negligence in the operation of an automobile. The decision turned principally upon the interpretation of section 451.250 which, in its pertinent parts, is as follows: “All real estate and any personal property, including rights in action, belonging to any woman at her marriage or which may have come to her during coverture, by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or has grown out of any violation of her personal rights, shall … be and remain her separate property and under her sole control, … In the Hamilton case [285 S.W.2d 645] it was held that the language of this statute “seems broad and plain,” and that “even if the common-law rule that marriage extinguished all rights of action and claims by one spouse against another, … should be, in the absence of specific statutory provision to the contrary, recognized and applied today in Missouri, Section 451.250 furnishes the necessary specific statutory authority for the abrogation of that rule as it might otherwise apply to *819the facts of … [that] case.” No discussion was made, nor was it appropriate to do so under the facts, of the provisions in section 451.250 pertaining to a right of action by the wife “which may have come to her during coverture” and which “has grown out of any violation of her personal rights.” But the interpretation and application of section 451.250 which led to the result in Hamilton v. Fulkerson apparently would apply with equal force and effect to the factual situation where a wife sought to sue her husband on a cause of action for a personal tort which came “to her during coverture” and which arose “out of any violation of her personal rights.” As we subsequently shall see this court held in Ennis v. Truhitte, Mo.Sup., 306 S.W.2d 549, that when a husband commits a personal tort against his wife a right of action does come into existence which- can survive his death, and this necessarily presupposes a violation of her personal rights. Specific consideration was given in the Hamilton case to the question of public policy, and its effect on the right of the wife to maintain the suit against her husband, but it was held that “there are no matters of public policy” [285 S.W.2d 647] which would prohibit the maintenance of the suit under the specific facts of that case. Therefore, even if it was not intended by what is now section 451.290, as stated in Rogers v. Rogers, [265 Mo. 200, 177 S.W. 384] “to confer greater rights of action upon a married woman than are possessed by her husband,” the Hamilton case holds that the Legislature did confer on the wife the right to sue her husband for an ante-nuptial personal tort whether the husband has the corresponding right or not. In addition, the inescapable result of the Hamilton case, by reason of its interpretation of section 451.250, necessarily must be that a wife may sue her husband for a personal tort which came “to her during coverture” and which arose “out of any violation of her personal rights,” and that no public policy would prohibit the action because, as stated in the Hamilton case, this court by its decision in Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645, “recognized that there were were no considerations of public policy weighty enough to prohibit a wife’s suit against her husband for a personal tort … committed during marriage.” [285 S.W.2d 647.]
¶11In the Hamilton case it was pointed out that in Rogers v. Rogers no mention was made of or consideration given to what is now section 451.250, although it was then in effect as § 8309, RSMo 1909. We also note that in Willott v. Willott, supra, a case wherein a wife sought to sue her husband for injuries resulting from his negligent operation of an automobile, what was then § 3003, RSMo 1929, and is now section 451.250 deserved only the comment that “it so obviously relates alone to the separate property rights of a married woman that we do not set it out or intend to give it further notice … [333 Mo. 896, 62 S.W.2d 1084.] This comment is directly in conflict with the interpretation of this statute in Hamilton v. Fulkerson.
¶12In Ennis v. Truhitte, supra, a woman was permitted to maintain an action against the estate of her deceased husband for a personal tort occurring during coverture. The opinion does not expressly state whether reliance was placed on section 451.250 or section 451.290, but it was stated that the married women’s act, of which both sections are considered to be a part, does not either expressly deny or grant to a wife the right to sue her husband for a personal tort, but that “the terminology of the statutes is broad enough to permissively cover the matter.” [306 S.W.2d 551.] The important feature of this case in its application to the matter now before us is that the court expressly held that a personal tort by one spouse against the other during coverture does give rise to a cause of action. After commenting on the fact that it is sometimes stated “ ‘that one spouse has no right of action against the other to recover damages for personal injuries caused by the other,’ ” it was stated that “it belies *820reality and fact to say that there is no tort when the husband either intentionally or negligently injures his wife.” Of course, it would equally belie reality and fact to say that there is no.tort when the wife either intentionally or negligently injures her husband. It was held in the Ennis case that “If there was a tort, even though one spouse could not maintain an action against the other for the wrong, the cause of action, as of course, accrued at the time of injury or when the damage ‘is capable of ascertainment’ … and so, … there was ‘a cause of action in being to survive.’ ” It was concluded that the circumstances in the Ennis case did not “infringe any reasons of policy,” and because the married women’s act does not “preclude the action” the suit could be maintained.
¶13It necessarily follows that the holding of Rogers v. Rogers [265 Mo. 200, 177 S.W.2d 384] that “an action for a personal tort committed by a husband against a wife during coverture cannot be maintained under our statutes” was disapproved by the Ennis case insofar as it would preclude the maintenance of such an action against the estate of a deceased husband. Also, it is inescapable that the language in Rogers v. Rogers to the effect that in no event could a husband sue his wife for a personal tort is disapproved insofar as it could be construed to prevent a suit by a husband against the estate of his deceased wife for a personal tort committed during cover-ture.
¶14We may briefly summarize the present situation as follows: Section 451.290 does not expressly state that one spouse may or may not sue the other for any purpose, but the courts have consistently held that this statute supplies the necessary statutory authority to abrogate the common-law rule which prohibited suits between spouses, and that it authorizes a suit by one spouse against the other in equity, and at law on contracts, and for the protection of property even though the action is one sounding in tort; Ennis v. Truhitte [306 S.W.2d 551] holds that when one spouse negligently or intentionally injures the other a cause of action for that personal tort does come into existence, and that section 451.290 is “broad enough to permissively cover the matter” and it does not preclude the maintenance of a suit by one spouse against the other for a personal tort; the reasons prompting the construction of what is section 451.290 in Rogers v. Rogers were that “the courts should construe the women’s emancipation statutes in such a way as would avoid the possibility of disturbing domestic tranquility” (See Hamilton v. Fulkerson, supra, 285 S.W.2d at page 644); and Hamilton v. Fulkerson unquestionably purports to dispose of the “public policy question” by its assertion that this court, in Mullally v. Langenberg Bros. Grain Co., supra, “recognized that there were no considerations of public policy weighty enough to prohibit a wife’s suit against her husband for a personal tort … committed during marriage.” Of course, if public policy does not prohibit a wife’s suit for personal tort against her husband, it does not prohibit such a suit by the husband against the wife. We must necessarily conclude that in view of the inescapable implications arising from what was said and done in Hamilton v. Fulkerson and Ennis v. Truhitte, this court has in effect already disapproved the result in Rogers v. Rogers. Therefore, the question we have is whether we should now directly ■disapprove it, or retract from the inescapable implications of these recent cases. This depends upon whether we agree that section 451.290 permits a suit for personal tort by one spouse against the other, and if so, whether there are any impelling reasons, notwithstanding such authorization, that public policy requires this court to deny the right of plaintiff in this case to sue his wife for a personal tort.
¶15As to statutory construction: The language of section 451.290 is that a married woman shall be deemed a feme sole so far as to enable her to sue and be sued at law or in equity. This statute seems “to be as broad as plain words can make it.” *821See Brown v. Gosser, Ky., 262 S.W.2d 480, 483, 43 A.L.R.2d 626. The plaintiff in this case unquestionably would be entitled to maintain suit on his cause of action against the defendant if she were unmarried, that is, if she were a feme sole, and the Legislature has unequivocally said that the defendant, as a married woman, may be sued as a feme sole. The broad and all inclusive language of the statute is not limited in any respect, and it does not directly or by inference provide that she may he sued by everyone except her husband. In Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A. 1916B, 907, the court construed a statute that a married woman may “sue and be sued, in all matters in law and equity … as if she were unmarried,” and it was there held: “If this language is given its ordinary meaning, she [wife] can maintain this action, providing she could maintain it if she were a single woman; for the statute provides in terms that, … she may sue and be sued in all matters as though she were unmarried. … Therefore the test to determine whether the plaintiff can maintain this action is to inquire whether she could maintain it if she were unmarried, and not to inquire who the defendant is, nor whether she is seeking to enforce a property right.” This interpretation and reasoning applies equally as well when it is the husband who is the plaintiff as when it is the wife. There is nothing in section 451.290 to indicate that in determining whether a married woman may be sued the courts should inquire who the plaintiff is.
¶16We also see nothing in the statute to indicate that the courts should inquire concerning the nature of the cause of action, that is, whether it is a suit on a contract, for a property tort, or for a personal tort. In Brandt v. Keller, 413 Ill. 503, 109 N.E.2d 729, 734, the court construed the provision of the Illinois married women’s act (prior to its amendment which expressly prohibited suits between spouses for personal torts committed during coverture, see Chap. 68, § 1, Ill.Ann.Stat.), which provided in substance that a married woman could, in all cases sue and be sued without joining her husband, to the same extent as if she were unmarried. It was there held: “The statute cannot be construed to abrogate a husband’s common-law immunity from suit by his wife for contract purposes, and be construed to perpetuate his immunity for another purpose.” By reason of the broad and unrestricted language used by the Legislature in section 451.290 it is inconsistent and entirely without support in the language used to say it was intended that a married woman may sue her husband and be sued by him on a contract and for a property tort but not for a personal tort. We must and do reaffirm the holding of Ennis v. Truhitte that the married women’s act does authorize or permit the maintenance of a suit for personal tort by one spouse against the other.
¶17As to public policy: We previously noted that the construction in Rogers v. Rogers of what is now § 451.290 was based primarily upon considerations of public policy. The language of section 451.290 is comparable to that in the Kentucky statute, KRS 404.020, which authorized a married woman “to sue and be sued as a single woman,” and in Brown v. Gosser, supra, in commenting on that statutory provision and the public policy question, it was stated that “we still are faced with the elementary and, we think, unanswerable proposition that the Legislature has- spoken on this subject. It has enunciated the public policy on this subject … by saying a married woman may sue and be sued -as a single woman. It is not the function of the courts to enunciate a contrary policy.” [262 S.W.2d 484.] We cannot escape the conclusion, notwithstanding the result reached in Rogers v. Rogers, that our Legislature has also announced, without any limitation as to who may be plaintiff or defendant or as to the type of action or its purpose, that the public policy in this state is that a married woman may sue and be sued, and that it is not our function to enunciate a contrary policy even though we may not agree that the announced policy is the best. We agree with the statement oi *822Justice Harlan in the dissenting opinion in Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 113, 114, 54 L.Ed. 1180, 30 L.R.A.,N.S., 1153, 21 Ann.Cas. 921, that “it is not within the functions of the court to ward off the dangers feared or the evils threatened simply by a judicial construction that will defeat the plainly-expressed will of the legislative department.”
¶18Assuming, however, that it may be contended that the authority contained in section 451.290 for one spouse to sue the other for any purpose, including a personal tort, is permissive only, and for that reason this court may declare that such suits as the one here presented should not be permitted as a matter of public policy, this court in Hamilton v. Fulkerson, has, in effect, already stated that there are no considerations of public policy weighty enough to prohibit a suit by one spouse against the other for a personal tort committed during marriage.
¶19The reasons most frequently advanced in support of the argument that public policy should constitute a bar to suits by one spouse against the other for personal tort are that such suits would disturb or destroy marital harmony and domestic accord; cause fraudulent and collusive claims; encourage litigation; and promote trivial lawsuits. It is also frequently asserted that the right of one spouse to sue the other for personal tort is not needed because the divorce and criminal laws afford an adequate remedy. For a complete discussion of this “public policy argument” see Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15; Brandt v. Keller, supra; Brown v. Gosser, supra; Thompson v. Thompson, supra; Harper & James, Torts, § 8.10; Prosser on Torts, 2d ed., § 101; 43 Har.L.Rev. 1030, 1052; 10 Calif.L.Rev. 461, 471-480; 10 Ind.L.J. 290 ; 23 Mo.L.Rev. 103; and the cases collected and annotated in 43 A.L.R. 2d 632, 661-664.
¶20This court in Hamilton v. Fulkerson discussed in considerable detail the various “public policy” arguments against the maintenance of a suit by one spouse against the other for an antenuptial tort. The same arguments pro and con apply equally to the maintenance of a suit by one spouse against the other for a tort committed during coverture, and without burdening this opinion with a repetition of that discussion we find no impelling reasons why the conclusion of the Hamilton case on this question should now be disapproved. We are inclined to agree with the statement in Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597, 601, 108 A.L.R. 1120, made in reference to the rule that public policy should prohibit a suit between spouses for a personal tort, that “the rule exists merely as a product of judicial interpretation, is vestigial in character, and embodies no tenable policy of morals or of social welfare. To urge that it survives because it is an aid to conjugal peace disregards reality. Conjugal peace would be as seriously jarred by an action for breach of contract, or on a promissory note, or for an injury to property, … all of which the law permits, as by one for personal injury.”
¶21There is no challenge to the petition other than that the parties are husband and wife. For the reasons above set forth, I am conviced that Rogers v. Rogers and the cases which have followed the result there reached should be overruled, and that the judgment dismissing the petition in this case should be reversed and the cause remanded for further proceedings.