¶1I respectfully dissent. The particular question presented for determination is whether one spouse may sue the other, after dissolution of the marriage by divorce, for damages sustained by plaintiff allegedly due to the negligence of the defendant, former spouse, which alleged negligent acts and damages were sustained while the two were still married.
¶2The right to maintain the action is denied by the principal opinion purely on the basis that at common law the spouses were regarded as one — unity of the spouses— and that this concept exists today in Missouri by reason of Sec. 1.010, RSMo 1969, V.A.M.S., first enacted in 1816.
¶3In Hamilton v. Fulkerson, Mo., 285 S.W.2d 642, 645, the court said, “Irrespective of statutes, any common-law rule based upon the fiction of the identity of husband and wife, long since contrary to the fact, should not be applied to any ‘first impression’ fact situation in this state.”
¶4In Ennis v. Truhitte, Mo., 306 S.W.2d 549, 550, the majority opinion of the Court en Banc held, “In one sense, of course, if one spouse may not sue the other there is no enforceable cause of action, but it belies reality and fact to say that there is no tort when the husband either intentionally or negligently injures his wife.” The dissenting opinion filed by Judge Eager and concurred in by Judge Hyde agreed with the foregoing statement stating, 1. c. 552, “I agree with the statement in the foregoing opinion that it ‘belies reality’ to say that there is no tort when the husband negligently or intentionally injures his wife; ….”
¶5In Brawner v. Brawner, Mo.Banc, 327 S.W.2d 808 the court held that one spouse could not maintain an action against the other spouse during the marriage for a tort committed during the marriage. This holding, however, was based upon the immunity from suit by one spouse against the other and the immunity was premised upon “public policy” considerations, and not upon the common-law concept of identity of spouses. This is evident from the majority opinion itself without reference to *338the dissent filed by Judge Hollingsworth, C. J. Judge Hollingsworth’s dissent expresses the view that the legislature of Missouri has set the public policy of this State in the enactment of the Married Women Acts, particularly Secs. 451.250 and 451.290, RSMo 1969, V.A.M.S., and that pursuant to said legislation one spouse could maintain an action in tort against another for intentional or negligent injury inflicted by one on the other during cover-ture. It is not necessary to the decision in the instant case to decide the question presented in Brawner, for here the marriage was ended by divorce and it was after the divorce that the tort action was instituted. Nevertheless, the dissenting opinion of Judge Hollingsworth in the Brawn-er case is, in my opinion, sound. I will not undertake to summarize Judge Hollings-worth’s dissent for to do so, in my opinion, may understate the clarity of the total dissenting opinion. Those interested may read it in full.
¶6I believe that it is a serious step backwards to decide the issues in the instant case based upon the concept of unity of spouses when that concept has been, on several occasions, knowingly rejected as a sound basis for the determination of issues similar to the one here involved. See cases cited supra.
¶7The principal opinion in this case makes no mention of Sec. 451.290, RSMo 1969, V.A.M.S. It 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; provided, a married woman may invoke all exemption and homestead laws now or hereafter in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property.”
¶8The article in 15 Modern Law Review 133 relied on by the principal opinion sets forth the wording of Section 12 of the Married Women’s Property Act of 1882 of the English Parliament. It provides as follows:
“Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies. . . . for the protection and security of her own property, as if she were a femme sole, but, subject as aforesaid, no husband or wife shall be entitled to sue the other for a tort." L. c. 148. (Emphasis mine.)
¶9Nowhere in our statute, Sec. 451.290, supra, does there appear any provisions that maintain in existence intra-spousal immunity from suit in tort, whereas the English Act of 1882 does expressly except that type of action from the otherwise general provision of the English Act.
¶10The Missouri statute, supra, is in derogation of the common law and should be recognized as such. Section 1.010, V.A. M.S. cited in the principal opinion concludes with the words “ … but all acts of the general assembly, or laws, shall be liberally construed, so as to effectuate the true intent and meaning thereof.”
¶11The English lawmakers apparently recognized the broad scope of Sec. 12 of the Act of 1882, supra, and, because of such recognition knew that, unless the exception regarding suits between spouses for a tort was specifically stated, the suit would be authorized. Had the Missouri legislature intended to except tort actions from the otherwise general provisions of Sec. 451.290, supra, it could have done so. See the dissenting opinion of Hollingsworth, C. J., in Brawner, supra, for a review of legislative acts of other states.
¶12*339For the foregoing reasons the instant case should not be decided on the basis of the common-law concept of unity of spouses, but the Court should consider the issues upon the same basis that Ennis v. Truhitte, supra, was decided, unless the Court were to hold that Sec. 451.290, supra, does not except from its provisions suits in tort between spouses. I am of the opinion that Sec. 451.290 does not except from its provisions tort actions between spouses. If the General Assembly of Missouri desires to amend the present law so as to except from its provisions actions in tort between spouses it can do so by legislative enactment, the same as the Illinois legislature has done. Brandt v. Keller, 413 Ill. 503, 109 N.E.2d 729 was decided by the Supreme Court of Illinois January 19, 1953 and held that the Married Women’s Act of Illinois did not exclude tort actions between spouses from its general provisions. Within six months of that decision the legislature of Illinois amended the Act and provided that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” Ch. 68, Sec. 1 Smith-Hurd Illinois Annot. Statutes.
¶13For the foregoing reasons I would reverse the judgment of the trial court sustaining defendants’ motion for summary judgment and remand the cause for trial on the merits.