¶1(dissenting).
¶2I adhere to the decision of the then majority of this Court in Koplik v. C. P. Trucking Corp., 27 N. J. 1 (1958). The present' majority sanction damage suits between husbands and wives and between unemancipated children and their parents (in the companion case of France v. A. P. A. Transport Corp., 56 N. J. 500 (1970), decided today) based on charges of alleged negligence. Judicial notice of the presence of insurance coverage on most automobiles is said to provide the primary reason for tire Court’s revised view. In my judgment, the new principle is contrary to public policy; it is conducive to and provides encouragement for collusion, perjury and fraud, and it puts the pursuit of dollars above morality. •
¶3It is naive to believe that such suits, nominally by wives and husbands against each other, or by unemancipated children against their parents or by parents against unemancipated children, will be true adversary proceedings. There will be only one real adversary, an unnamed one — the insurance company •— and with rare exceptions that adversary will be impotent to defend.
¶4My colleagues overlook the fact that insurance policies on automobiles contract to provide protection for owners and drivers against damages arising out of liability imposed by law. That means a just liability arising from the true existence of negligent operation of the vehicle at the time of the accident. It does not mean either a liability assumed by the driver or one agreed upon between him and his spouse or child in order to make a money recovery reasonably certain.
¶5The principle which now becomes the law in effect transforms the ordinary automobile liability policy into one providing accident and health coverage -- where fault plays no part in the recovery of benefits. Conceivably protagonists of the current movement toward liability without fault in automobile accidents might take comfort in the Court’s new view. From their standpoint, it can be argued that they have been moved one step closer to their goal.
¶6*497The majority take pains to show their realization of the great danger of collusion arising from their decision in this case. But they say that our trial courts and juries can be counted on to discover collusion and to deny recovery accordingly. They further suggest that if experience demonstrates that such optimism is misplaced, reinstatement of the immunity can be considered. Who has ever been able to see how much of the iceberg is below the surface? But there are very few people who do not believe that much more of it lurks below the surface than is visible above.
¶7The majority suggest that certain later decisions of our Court and the Appellate Division have “undercut” Koplih. I think not. In Long v. Landy, 35 N. J. 44 (1961), an automobile case, we allowed a wife to sue her deceased husband’s estate on account of injuries she received in an accident which she claimed was due to his careless driving. Obviously, there was no domestic tranquility to disturb after his death, and no one can collude with a dead man. So too with Sanchez v. Olivarez, 94 N. J. Super. 61 (1967) where it was said in a similar negligence action that divorce removes the interspousal immunity. Even the most ardent supporter of domestic tranquility would not expect the state to continue after divorce, nor would he consider it likely that one ex-spouse would engage in perjurious collusion with the other, even to mulct an insurance company. For do the cases of Hudson v. Gas Consumers’ Association, 123 N. J. L. 252 (E. & A. 1939) and Eule v. Eule Motor Sales, 34 N. J. 537 (1961), cited by the present majority, undercut either the principle or the morality of Koplih. In fact, apart from legal doctrine, each of the situations had its own peculiar built-in psychological restraint against collusion with the husband whose alleged negligence was the thesis upon which the wife predicated her claim against the husband’s employer in the one case and his partnership in the other. It is not so likely that a husband will freely collude with his wife when he knows that his employer or the partnership has an eye on him. And that scrutiny undoubtedly would be even *498closer if the possibility existed of recovery in excess of the insurance coverage.
¶8Moreover, as the majority of the Court pointed out in the opinion in Hule, Hudson does no violence to the rule that the wife cannot sue the husband. The liability of the employer did not stem from the husband’s act qua husband, but rather from his acts as agent of the employer under the ancient doctrine of respondeat superior which has its roots deep in public policy. Eurthermore, the opinion in Hule plainly indicated that that majority cast serious doubt on the dictum expressed in Hudson that if the employee’s wife obtained a judgment in her action, the employer would have an indemnity action over against the employee-husband. Eule v. Eule Motor Sales, supra, 34 N. J. at 540-541.
¶9It may be noted further in Hule that the Court referred to the provisions of the uniform partnership act which specifically make the “law of agency” applicable and say also that “[e]very partner is an agent of the partnership for the purpose of its business.” N. J. S. A. 42:1-4(3), 42 :l-9. In the face of the statute, the then majority of the Court found it difficult to believe that the Legislature intended to confer upon the partnership the personal immunity of the spouse. 34 N. J. at 542-543. And the opinion made clear with respect to the operation of an automobile on a partnership’s business that under the statutory policy the driver’s status as husband was immaterial; it was his capacity as agent that brought liability to the partnership.
¶10It cannot escape notice that throughout the opinion in Immer the majority speak in terms of the interspousal immunity rule in negligence actions. And they say that our Court had adhered to the Eoplilc rule despite “a mounting wrave of criticism by all the leading commentators on the subject.” In the last three sentences of the opinion, however, the members of the majority declare they are limiting the decision overruling the immunity doctrine to “claims arising out of motor vehicle accidents.” But why, if the condemnation of “virtually all of the academic writers on *499the subject” is sound? If the principle is sound that one spouse should be subject to a damage suit for injuries caused by the negligence of the other because of liability insurance coverage, is it not equally applicable to a suit by a wife against her husband if she allegedly falls over the slippers he negligently left beside his chair or in the hallway the night before ? Is the principle not applicable when a husband allegedly falls over his minor son’s roller skates which his wife left on the staircase and forgot about? Is it not applicable if the father allegedly leaves his tube of suntan lotion in the bathroom within reach of his son who uses it, thinking it to be toothpaste, and then becomes violently ill? If the majority’s new doctrine is consistent with public policy and morality, should such claims be excluded if they are honest, non-eollusive ones, even when homeowners’ liability insurance is held by the spouse or parent?
¶11I believe the decision in Koplilc was sound and so must dissent from the rule now adopted by the new majority in this case.
¶12Justices Hall and Haneman join in this dissent.
¶13For reversal and remandment — Chief Justice Weintrattb and Justices Jacobs, Proctor and Schettino — 4.
¶14For affirmance — Justices Francis, Hall and HaneMAN — 3.