#### S. B. ROBERTS v. UNITED STATES FIDELITY & GUARANTY COMPANY.

(Filed 19 December, 1924.)

Husband and Wife — Negligence — Insurance — Indemnity Companies— Public Policy — Statutes.

Tbe Legislature bas tbe power to declare tbe public policy of tbe State as to permitting a wife to recover against ber husband for an injury received by ber from bis negligent acts, and where sbe bas recovered in ber action against bim damages for bis negligently driving an automobile while sbe was a passenger, tbe husband may maintain his action for tbe same injury against an indemnity company which had issued to bim its policy covering tbe same negligent act.

Stacy, J., not sitting.

Appeal by defendant from McElroy, J., and a jury, October Term, 1924, of Madison.

Guy V. Roberts, George M. Pritchard, and Martin, Rollins & Wright for plaintiff. .

J. Coleman Ramsey and Harkins & Van Winkle for defendant.

Pee Cuklam.

On 13 May, 1922, tbe defendant, through its agent, A. W. Whitehurst, at Marshall, N. C., issued tbe policy sued on, No. U-45356, and on SO May, 1922, tbe plaintiff, while driving bis car in Madison County, accompanied by bis wife and ber sister, Mrs. R. S. Ramsey, and McKinley Pritchard, collided with another car and bis wife sustained injuries. Sbe instituted suit against ber husband, tbe plaintiff in tbis case, and recovered $2,500 damages, and tbe judgment was affirmed by tbe Supreme Court (Roberts v. Roberts, 185 N. C., 566).

Tbis action is brought by plaintiff against tbe defendant to recover on tbe Liability Insurance Policy issued to plaintiff by defendant on 13 May, 1922, for one year, on bis Hupmobile touring car, insuring bim “Against loss or expense, arising or resulting from claims upon tbe assured for damages in consequence of an accident occurring within tbe limits of tbe United States and Canada during tbe term of tbis *796policy, by reason of the ownership, maintenance or nse (including the carrying of goods thereon and the loading and unloading thereof when commercially used) of the automobile or any of the automobiles enumerated and described herein resulting in

INJURY to Persons

Bodily injuries or death resulting at any time therefrom, suffered by any person or persons other than any employee or employees of the assured while engaged in the care, operation or maintenance of any of the assured’s automobiles. The company’s liability is limited to five thousand dollars ($5,000.00) to any one person. ...”

Defense of Suits

“In addition to the above, the company does hereby agree:

(1) To defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, on account of damages suffered or alleged to be suffered under the circumstances hereinbefore described.

Payment of Expenses

(2) To pay the expenses incurred in defending any suit described in the preceding paragraph, also the interest on any judgment within the limits of the insurance hereby granted and any costs taxed against the assured on account thereof;

Reimbursement' Expenses

(3) To reimburse the assured for the expense incurred in providing such immediate surgical relief as is imperative at the time of any accident covered hereunder.

Omnibus Coverage

(4) To extend the insurance provided by this policy so as to be available, in the same manner and under the same conditions as it is available to the named assured, to any person or persons while riding in or legally operating any of the automobiles covered hereunder, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured; or, if the named assured is an individual, with the permission of an adult member of the named assured’s household other than the chauffeur or a domestic servant.”

While the policy was in full force the plaintiff, while .driving his car, described in the policy, had a collision with another automobile on 30 May, 1922, causing serious and permanent injuries to his wife who was *797a passenger in bis car at tbe time. Tbe plaintiff immediately reported tbe accident to tbe insurance company, but tbe insurance company refused to settle tbe claim of Mrs. Orla Roberts and sbe brought suit against ber busband, tbe plaintiff, for damages, alleging tbat ber injuries were caused by bis negligent operation of tbe car, and recovered judgment against ber busband for $2,500 damages and costs.

Tbe defendant contended “tbat it is against public policy and sound morals to permit tbe plaintiff to recover in tbis case.”

Tbis Court said in Roberts v. Roberts, supra, at p. 569: “We bave said tbat certain rights, duties and disabilities of busband and wife were produced by tbe joint operation of public policy and a common-law fiction; and as it is tbe prerogative of tbe Legislature to change or modify tbe common law, and to declare what acts shall be contrary to or in keeping with public policy, it is necessary to determine in what way, if any, and to what extent tbe relation of busband and wife has been modified in tbis jurisdiction by legislative enactment.”

Tbe Court held tbat under tbe legislative enactments in tbis State, tbe wife could sue tbe busband in tort and be was liable for bis negligent act which caused bis wife a personal injury.

Tbe contract made by defendant protects tbe plaintiff. Tbe défendant can change its contract in tbe future, if it desires to do so, so as not to cover a negligent injury to tbe wife. Tbe question of public policy and sound morals must be addressed to tbe legislative branch of tbe Government.

We beard tbe argument of counsel for both plaintiff and defendant, read critically tbe record and briefs, and can find,

No error.

Stacy, J., not sitting.