STORCKMAN, Judge.
This is an action by a husband against his wife to recover damages in the sum of $30,000 for personal injuries alleged to Lave been caused by the negligence of the wife in the operation of her automobile.The trial court dismissed plaintiff’s petition holding that the plaintiff husband could not maintain an action against his wife for a personal tort. The plaintiff has appealed.
The parties are and were at the time of the alleged injuries husband and wife, having been married for more than forty-seven years. The negligence charged is that the defendant failed to set the brakes properly when she parked her automobile on a private drive of the premises owned jointly by the parties, thereby permitting the automobile to roll backwards and strike and injure the plaintiff. The question presented is whether a husband can maintain a civil action for damages against his wife for personal injuries resulting from negligent acts committed by the wife during the marriage.
It is recognized by the parties that at common law neither the husband nor the wife could maintain a civil action against the other for a personal tort. Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382, and Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114, are the leading cases construing the Married Women’s Act of 1889 and holding that it did not have the effect of permitting a wife to maintain a civil action against her husband for a personal tort. The first case was an action for false imprisonment and the latter was based on the negligent operation of an automobile. The plaintiff states that it may not be necessary to overrule Rogers and [811]*811Willott in order to permit the maintenance of this action because there is stronger authority both statutory and judicial for the husband’s right to sue. However, the plaintiff urges that Rogers and Willott should be overruled if necessary to permit the maintenance of the action and that to do otherwise would violate plaintiff’s rights under the Constitution of Missouri and the Constitution of the United States.
The statutes upon which the plaintiff mainly relies are Sections 451.250, 451.290, 507.010 and 537.040'RSMo 1949, V.A.M.S. As we view the legal problem presented, it is unnecessary to construe again or discuss at length the effect of the Married Women’s Act. The reason is that it was the wife and not the husband that was under coverture at common law.
Coverture is a term used to describe the condition or state of a married woman whereby the civil existence of the wife was for many purposes merged with that of her husband. Bouv.Law Diet., Rawles Third Revision. In Osborn v. Horine, 19 Ill. 124, 125, the Supreme Court of Illinois described coverture as follows: “The very term coverture implies that she is, during its continuance, under the protection of her husband, and the common law will not allow her to do anything which may prejudice her rights or interests, without his advice, consent and approval.” The general purpose of the Married Women’s Act and related statutes was to relieve the wife from this condition of civil dependency and disability, and to free the husband from liability for his wife’s torts.
In this case we are not concerned with the right of a married woman to maintain an action but with her liability and legal capacity to be sued by her husband in a negligence action. If public policy does not prohibit such a suit, authority to maintain it is clearly permitted by section 537.040 without resort to the derivative sections of the Married Women’s Act to which reference has been made. Section 537.040 provides: “For all civil injuries committed by a married woman, damages may be recovered against her alone, and her husband shall not be responsible therefor, except in cases where, under the law, he would be jointly responsible with her, if the marriage did not exist.” If this section does not create, it at least recognizes the liability of a married woman for her torts; it also absolves the husband of responsibility for the wife’s torts based on the marriage relation alone. State ex rel. McCrory v. Bland, 355 Mo. 706, 197 S.W.2d 669, 168 A.L.R. 929.
In the present state of the law, one spouse is not permitted to maintain this type of action against the other because of the common-law rule of immunity. Section 1.010 RSMo 1949, V.A.M.S. This is true notwithstanding the recent cases of Hamilton v. Fulkerson, Mo., 285 S.W.2d 642, and Ennis v. Truhitte, Mo., 306 S.W.2d 549, in which cases it was held that the rule did not apply because of the special circumstances of those cases. The Married Women’s Act has been construed on several occasions as not authorizing actions for personal torts between spouses. It has not been demonstrated that this court is in a better position to interpret the legislative intent of these statutes than the courts that decided the Rogers case in 1915 and the Willott case in 1933. It may well be that this court would reach a different conclusion if it were construing similar statutes enacted in a modern day setting; but we are not at liberty to say that these prior decisions do not correctly interpret the legislative intent of 1889. We next take up the plaintiff’s contention that this court should declare that the public policy of the state no longer supports the rule, thereby disapproving and overruling Rogers, Willott, and similar cases.
The plaintiff urges that the judgment of dismissal is contrary to the public policy of the state as expressed in the Motor Vehicle Responsibility Law, Ch. 303, RSMo 1949, V.A.M.S. He contends the fact that the law contains no exclusion for actions between spouses is indicative of a [812]*812legislative trend and of a changed public policy. This contention overlooks the nature of the law. Its purpose is to provide greater assurance that liabilities arising out of the ownership, maintenance or use of motor vehicles will be discharged. It does not purport to create any new liability and does not affect the policy here involved.
While a precise definition of the term public policy presents difficulty, it is generally said to be that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good; it is synonymous with the “policy of the law” and “the public good”. Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615, 620(2). The definition and effect of the te.i m is also extensively considered and discussed in In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120, 122, 51 A.L.R. 877, certiorari denied 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325.
Both statutes and judicial decisions have a bearing in ascertaining the public policy of a state, but statutes are the very highest evidence of public policy and binding on the courts. Reed v. Jackson County, 346 Mo. 720, 142 S.W.2d 862, 865(1), certiorari denied Jackson Co. v. Reed, 311 U.S. 716, 61 S.Ct. 397, 85 L.Ed. 466; State on Inf. of Dalton v. Miles Laboratories, Inc., 365 Mo. 350, 282 S.W.2d 564, 574(15); State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 529(40). The general assembly has legislated extensively with regard to marriage, the marital relation, and family rights and responsibilities.
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STORCKMAN, Judge.
This is an action by a husband against his wife to recover damages in the sum of $30,000 for personal injuries alleged to Lave been caused by the negligence of the wife in the operation of her automobile.The trial court dismissed plaintiff’s petition holding that the plaintiff husband could not maintain an action against his wife for a personal tort. The plaintiff has appealed.
The parties are and were at the time of the alleged injuries husband and wife, having been married for more than forty-seven years. The negligence charged is that the defendant failed to set the brakes properly when she parked her automobile on a private drive of the premises owned jointly by the parties, thereby permitting the automobile to roll backwards and strike and injure the plaintiff. The question presented is whether a husband can maintain a civil action for damages against his wife for personal injuries resulting from negligent acts committed by the wife during the marriage.
It is recognized by the parties that at common law neither the husband nor the wife could maintain a civil action against the other for a personal tort. Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382, and Willott v. Willott, 333 Mo. 896, 62 S.W.2d 1084, 89 A.L.R. 114, are the leading cases construing the Married Women’s Act of 1889 and holding that it did not have the effect of permitting a wife to maintain a civil action against her husband for a personal tort. The first case was an action for false imprisonment and the latter was based on the negligent operation of an automobile. The plaintiff states that it may not be necessary to overrule Rogers and [811]*811Willott in order to permit the maintenance of this action because there is stronger authority both statutory and judicial for the husband’s right to sue. However, the plaintiff urges that Rogers and Willott should be overruled if necessary to permit the maintenance of the action and that to do otherwise would violate plaintiff’s rights under the Constitution of Missouri and the Constitution of the United States.
The statutes upon which the plaintiff mainly relies are Sections 451.250, 451.290, 507.010 and 537.040'RSMo 1949, V.A.M.S. As we view the legal problem presented, it is unnecessary to construe again or discuss at length the effect of the Married Women’s Act. The reason is that it was the wife and not the husband that was under coverture at common law.
Coverture is a term used to describe the condition or state of a married woman whereby the civil existence of the wife was for many purposes merged with that of her husband. Bouv.Law Diet., Rawles Third Revision. In Osborn v. Horine, 19 Ill. 124, 125, the Supreme Court of Illinois described coverture as follows: “The very term coverture implies that she is, during its continuance, under the protection of her husband, and the common law will not allow her to do anything which may prejudice her rights or interests, without his advice, consent and approval.” The general purpose of the Married Women’s Act and related statutes was to relieve the wife from this condition of civil dependency and disability, and to free the husband from liability for his wife’s torts.
In this case we are not concerned with the right of a married woman to maintain an action but with her liability and legal capacity to be sued by her husband in a negligence action. If public policy does not prohibit such a suit, authority to maintain it is clearly permitted by section 537.040 without resort to the derivative sections of the Married Women’s Act to which reference has been made. Section 537.040 provides: “For all civil injuries committed by a married woman, damages may be recovered against her alone, and her husband shall not be responsible therefor, except in cases where, under the law, he would be jointly responsible with her, if the marriage did not exist.” If this section does not create, it at least recognizes the liability of a married woman for her torts; it also absolves the husband of responsibility for the wife’s torts based on the marriage relation alone. State ex rel. McCrory v. Bland, 355 Mo. 706, 197 S.W.2d 669, 168 A.L.R. 929.
In the present state of the law, one spouse is not permitted to maintain this type of action against the other because of the common-law rule of immunity. Section 1.010 RSMo 1949, V.A.M.S. This is true notwithstanding the recent cases of Hamilton v. Fulkerson, Mo., 285 S.W.2d 642, and Ennis v. Truhitte, Mo., 306 S.W.2d 549, in which cases it was held that the rule did not apply because of the special circumstances of those cases. The Married Women’s Act has been construed on several occasions as not authorizing actions for personal torts between spouses. It has not been demonstrated that this court is in a better position to interpret the legislative intent of these statutes than the courts that decided the Rogers case in 1915 and the Willott case in 1933. It may well be that this court would reach a different conclusion if it were construing similar statutes enacted in a modern day setting; but we are not at liberty to say that these prior decisions do not correctly interpret the legislative intent of 1889. We next take up the plaintiff’s contention that this court should declare that the public policy of the state no longer supports the rule, thereby disapproving and overruling Rogers, Willott, and similar cases.
The plaintiff urges that the judgment of dismissal is contrary to the public policy of the state as expressed in the Motor Vehicle Responsibility Law, Ch. 303, RSMo 1949, V.A.M.S. He contends the fact that the law contains no exclusion for actions between spouses is indicative of a [812]*812legislative trend and of a changed public policy. This contention overlooks the nature of the law. Its purpose is to provide greater assurance that liabilities arising out of the ownership, maintenance or use of motor vehicles will be discharged. It does not purport to create any new liability and does not affect the policy here involved.
While a precise definition of the term public policy presents difficulty, it is generally said to be that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good; it is synonymous with the “policy of the law” and “the public good”. Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615, 620(2). The definition and effect of the te.i m is also extensively considered and discussed in In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120, 122, 51 A.L.R. 877, certiorari denied 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325.
Both statutes and judicial decisions have a bearing in ascertaining the public policy of a state, but statutes are the very highest evidence of public policy and binding on the courts. Reed v. Jackson County, 346 Mo. 720, 142 S.W.2d 862, 865(1), certiorari denied Jackson Co. v. Reed, 311 U.S. 716, 61 S.Ct. 397, 85 L.Ed. 466; State on Inf. of Dalton v. Miles Laboratories, Inc., 365 Mo. 350, 282 S.W.2d 564, 574(15); State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 529(40). The general assembly has legislated extensively with regard to marriage, the marital relation, and family rights and responsibilities. It has removed a number of common-law disabilities such as incompetency of a husband or wife to testify in a criminal or a civil case to which the other is a party although the statute in each instance preserves the privilege of their confidential communications. Sections 491.020 and 546.260. While the legislature has been active in the general field of marital relations, it has not seen fit to change the construction of the Married Women’s Act made by the Rogers and Willott decisions and the matrimonial immunity declared by those cases and referred to in Rice v. Gray, 225 Mo.App. 890, 34 S.W.2d 567.
Where the general assembly has changed' one aspect of a common-law rule, the courts have generally refrained from undertaking any modification of the remainder of the rule. See Cummings v. Illinois Central R. Co., 364 Mo. 868, 269 S.W.2d 111, 121, 47 A.L.R.2d 513, wherein this court stated: “Thus, the legislature has seen fit to change the common law rule in one respect. In our view, if any other changes are to be effected — if dying declarations are to be made admissible in criminal cases other than homicide and abortion (and similar) cases, or in certain types of civil cases or in civil cases generally — such changes should be made by the legislature, the law-enacting branch of government, rather than by the judiciary, the law-interpreting branch.” See also State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845, 848-849.
The proper ambit of the court’s authority on an issue of this kind is both important and difficult to delineate. Mr. Benjamin N. Cardozo, a judge of the highest appellate court of New York State and later a justice of the Supreme Court of the United States, is recognized as one of the great students and authorities on the development and function of the common law. In his treatise on The Nature of The Judicial Process, Judge Cardozo made these observations concerning the role of the judge as a legislator: “We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance.” p. 103. “Each [the judge and the legislator] indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. ITe legislates only between gaps. He fills the open spaces in the law.” p. 113. “ * * * the power to declare the law carries with it the power, and within limits the duty, to make law when none exists, * * p. [813]*813124. “Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, by that abuse of power, they violate the law.” p. 129. “ * * * there are jural principles which limit the freedom of the judge, * * p. 130. “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.” p. 141.
Obviously, the general assembly is not only better equipped than this court to investigate and develop the facts pertinent to a determination of this phase of public policy but also has greater authority to deal with the particular problem and at the same time the related ones. The problem with which we are concerned is not an isolated one. It touches on many subjects with which the legislature has dealt, such as the privileged communications of married persons, a husband’s liability for his wife’s support which includes medical expenses, .and children’s rights of inheritance from their parents. Also, the insurance business is affected with a public interest, is subject to the control of the state’s police power and has been extensively regulated. State on Inf. of McKittrick v. Koon, 356 Mo. 284, 201 S.W.2d 446; Barker v. Leggett, Mo., 295 S.W.2d 836.
Assuming, however, that this court is free to declare the public policy and change the rule in this kind of case, the persuasive effect of the action of other jurisdictions and related decisions of this state should be considered. Without undertaking to discuss in detail the holdings in other states, they may be summarized by means of the annotation in 43 A.L.R.2d 632, published in 1955. It appears that twenty-nine states, including Missouri, adhere to the common-law rule of marital immunity. In addition, such actions are not permitted in the District of Columbia, Canada or England. On the other hand, the annotation lists twelve states as following the minority rule, permitting either spouse to sue the other for a personal tort. In two other states, Arizona and Ohio, the decisions are rather inconclusive but they appear to follow the minority rule. It appears that two other states, North Carolina and Wisconsin, have by statute authorized the maintenance of a personal injury action by one spouse against the other.
In 1953 the Illinois legislature amended its statute to provide that “neither husband nor wife may sue the other for a tort to the person committed during coverture.” Laws of Illinois, 1953, p. 437, § 1; Smith-Hurd Illinois Statutes, Ch. 68, § 1. In 1937 when § 57 of New York’s Domestic Relation Law was changed to permit a suit by a husband or wife against the other for personal injuries, a companion statute was enacted which provides: “No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or'her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy.” Consolidated Laws of New York, Insurance Law, § 167, subd. 3.
Legal writers have generally favored some change in the common-law rule, although they are not in complete agreement as to the extent and nature of the modification. Professor William E. McCurdy in his treatise on Torts Between Persons In Domestic Relation, 43 Harvard Law Review, 1030, 1050, discusses the considerations influencing the courts for recognition or denial of the right of spouses to sue each other for personal torts and suggests five possible solutions ranging from permitting no civil action to permitting all actions between spouses as though they were strangers sole and unmarried. He prefers a plan imposing a number of sub[814]*814stantive limitations upon such actions because of the relation of the parties. In discussing the possible disruption of home life and danger of domestic collusion, Professor McCurdy stated (p. 1053): “In all these things we are in the realm of vague public policy, dangerous for courts to invade, equipped as they are with only the weapon of a priori reasoning.” Among the text-writers on the subject are Prosser on Torts, § 101, pp. 670, 673, and I Harper and James, The Law of Torts, § 8.10, p. 643. It is argued by some that liability insurance coverage in such cases is an effective insulation against a defendant spouse being unhappy about being sued; while others say that insurance coverage would tend to induce collusive claims since both spouses would stand to benefit by the recovery which would be morally offensive. Some think that accident insurance coverage would be preferable to liability insurance. While the protection is limited to pecuniary losses, it covers all accidental injuries including those resulting from automobile accidents, is not dependent upon human fault, and does not put the married couple in an adversary position as a prerequisite for recovery.
Just recently this court recognized the continued existence of the rule that an un-emancipated minor cannot sue a parent to-recover damages for personal injuries alleged to have been caused by the negligent operation of an automobile. Wurth v. Wurth, Mo., 322 S.W.2d 745. This immunity from suit is based upon the same sort of public policy considerations as in the case at bar. Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29. Also in the Baker case, as in the case at bar, the liability of the defendant was insured. This court has also adhered to the rule of immunity of charitable institutions for tort liability, Kreuger v. Schmiechen, 364 Mo. 568, 264 S.W.2d 311; Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615, and of municipalities while operating a hospital as a governmental function, Schroeder v. City of St. Louis, 360 Mo. 293, 228 S.W.2d 677.
The common-law rule of spousal immunity from suit for a personal tort has been in existence during the entire period of Missouri statehood. It affects more than private rights, 26 Am.Jur. 633, Husband and Wife § 4, and should not be lightly disturbed. The appellant urges that the rule is so “out of step with modern conditions” that it should be abrogated by the court. We refrain from doing so. If the public interest requires a change, we believe, for the reasons stated, that it should be made by the general assembly. On the present record it has not been demonstrated that the court should act.
In his Divisional Reply and Supplemental Brief, the plaintiff presented for the first time his contention that the common-law rule of marital immunity violates § 14, Art. I, Constitution of Missouri 1945, V.A.M.S., in that a “certain remedy” is not afforded for the injury sued on. This constitutional question was not presented to the trial court nor was it preserved in plaintiff’s motion for new trial as required by section 512.160(1) and S.Ct. Rule 3.23, 42 V.A.M.S. The plaintiff, however, seeks to have the contention decided by invoking S.Ct. Rule 3.27. Certainly this is not a plain error in the sense that it is manifest and clear. See Elkins-Swyers Office Equipment Co. v. Moniteau Co., 357 Mo. 448, 209 S.W.2d 127, 130(2); Quinn v. Buchanan, Mo., 298 S.W.2d 413, 417(5), and 11 Am. Jur. 1124-1126, Constitutional Law § 326. It is not within the purview of the rule designed to prevent the occurrence of a manifest injustice. Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421; Johnson v. Fotie, Mo., 308 S.W.2d 662; In re Petersen’s Estate, Mo., 295 S.W.2d 144. This will further appear from the consideration of other constitutional questions properly raised.
The plaintiff also asserts that the judgment of dismissal was in violation of § 10, Art. I, Constitution of Missouri, and § 1 of Amendment 14 of the Constitution of the United States, in that he was denied the [815]*815right to enforce his chose in action thereby depriving him of his property without due process of law. The essence of plaintiff’s contention is that the due process limitation prevents the state from imposing any restriction based on marital status upon litigation between spouses. This would necessarily mean that statutory as well as common-law restrictions are prohibited. The defendant says there can be no constitutional questions because the common-law rule of immunity existed prior to the adoption of the constitutional provisions. We believe, however, the issues should be decided on broader grounds.
In the reasonable exercise of its police power, a state may regulate the effect of marriage upon the property rights of the parties as well as the qualification of the contracting parties, the formalities necessary for its creation, the duties and obligations incident to the marriage relation, and the grounds for its dissolution. 55 C.J.S. Marriage § 2, p. 809; 35 Am.Jur. 187, Marriage § 12.
Matrimonial status is still a matter of public concern; the state has a direct interest and is in effect a third party to every marriage contract. Parks v. Marshall, 322 Mo. 218, 14 S.W.2d 590, 595(7), 62 A.L.R. 835; Wagoner v. Wagoner, 287 Mo. 567, 229 S.W. 1064, 1070(5).
The constitutional guaranties that no person shall be deprived of life, liberty, or property without due process of law, and that no state shall deny to any person within its jurisdiction the equal protection of the laws, were not intended to limit the subjects upon which the police power of a state may lawfully be exerted. Bellerive Investment Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 634(1); Valley Spring Hog Ranch Co. v. Plagmann, 282 Mo. 1, 220 S.W. 1, 5(10), 15 A.L.R. 266.
A regulation that is fairly referable to the police power of the state in that it is designed to protect the health, safety, peace, comfort and general welfare, does not infringe upon constitutional guaranties of personal rights and due process unless the regulation passes the bounds of reason and assumes the character of arbitrary power. Bellerive Investment Co. v. Kansas City, supra, 13 S.W.2d 634(2).
The plaintiff also asserts that the dismissal of his petition was in violation of § 2, Art. I, Constitution of Missouri, and § 1 of Amendment 14 of the Constitution of the United States in that he was denied the right to enforce his chose in action “because of the coverture of the parties” thereby depriving him of equal rights and opportunity under the law and equal protection of the laws. The plaintiff does not demonstrate any unconstitutional inequality and we have discovered none.
The equal protection clauses of the state and federal constitutions do not prohibit classification of the subjects of legislation and the constitutional provisions are sufficiently complied with if all within the same class are included and treated alike. Hammett v. Kansas City, 351 Mo. 192, 173 S.W.2d 70, 72(1); Ballentine v. Nester, 350 Mo. 58, 164 S.W.2d 378, 383 (17).
Many statutory and common-law obligations and privileges not equally distributed between husband and wife, such as the obligation of family support imposed on the husband, are undoubtedly valid. The wisdom and policy of the statute abolishing curtesy which created an inequality between husbands and wives and discriminated against the husband’s rights was held to be a matter for legislative determination that could not be considered by the courts. O’Brien v. Sedalia Trust Co., 319 Mo. 1001, 5 S.W.2d 74, 76-77. The claims of unconstitutionality are denied.
The trial court’s ruling was not erroneous and accordingly the judgment is affirmed.
All concur except HOLLINGSWORTH, C. J., who dissents in separate opinion filed.