The opinion
Dissenting Opinion by
Mr. Justice Roberts:
I am unable to agree with the “majority” 1 that “the attack on the validity of the judgment as entered *538 could not have been raised at any other stage of the proceeding” in the court below. The record is clearly to the contrary. It is undisputed that the challenge to the judgment was never made or even suggested until this appeal was perfected.
It was only after this appeal was taken, and while it was pending, that appellant’s counsel, purporting to act for additional defendant Donald Daly and admittedly acting on behalf of Daly’s insurance carrier, petitioned the court below to strike the judgment and to stay execution and attachment. 2 The insurance carrier (the real appellant here) did not pursue this petition and the petition remains undisposed of in the court below, just as appellant filed it there. We are consequently without the benefit of an opinion by the trial court on the issue now raised, or on the validity of the judgment as entered. It seems clear that appellant either raised this question too late or his present appeal is premature.
In volume after volume of our reports, this Court has repeatedly insisted that questions not raised in the court below will not be considered on appeal. E.g., Rimpa v. Bell, 413 Pa. 274 , 196 A. 2d 738 (1964) ; Teodori v. Penn Hills School Dist., 413 Pa. 127 , 196 A. 2d 306 (1964) ; Greet v. Arned Corp., 412 Pa. 292 , 194 A. 2d 343 (1963) ; Kilian v. Allegheny County Distrib., 409 Pa. 344 , 185 A. 2d 517 (1962) ; Clark v. Rutecki, 408 Pa. 25, 27 , 182 A. 2d 687, 688 (1962) and cases cited there.
Accordingly, I am at a loss to understand why the “majority” so hastily assumes that this appeal is properly before us on the merits.
*539 I must also dissent from the language of the “majority” opinion which “overrules” 3 Ondovchik v. Ondovchik, 411 Pa. 643 , 192 A. 2d 389 (1963). The “majority” today takes the position that this Court’s ruling in Ondovchik is contrary to the earlier cases of Meisel v. Little, 407 Pa. 546 , 180 A. 2d 772 (1962), Kiser v. Schlosser, 389 Pa. 131 , 132 A. 2d 344 (1957), Koontz v. Messer, 320 Pa. 487 , 181 Atl. 792 (1935) and Fisher v. Diehl, 156 Pa. Superior Ct. 476 , 40 A. 2d 912 (1945). Even if it were conceded (and it is not) that such a conflict does exist, I am aware of no decision of this Court, or any other authority, which holds that earlier cases prevail over the most recent decision, and that the latest case must be overruled. Furthermore, when this same Court decided Ondovchik in July 1963, that case was not then in conflict with those earlier decisions and is not so now. It is inaccurate to conclude, as the “majority” now does, that those earlier decisions mandate the rejection of Ondovchik and a reversal of the judgment entered below.
Moreover, the cases on which the “majority” rely and read as controlling may, at most, have some surface similarities to the instant case, as well as to Ondovchik . Nevertheless, the factual and legal differences are so fundamentally dissimilar that the earlier rulings do not govern or should not even persuasively influence the decision to be reached on the merits of the instant case.
Although both Meisel v. Little, supra, and Ondovchik involved premarital torts, the cases are clearly not in conflict. 4 In fact Ondovchik is not only in harmony with Meisel , but it is a natural development from the rationale underlying that case. Meisel in *540 volved a direct suit by a wife against her husband for an unliquidated claim for damages in tort. The clear rationale of Meisel is that such an action is expressly precluded by our statute. 5
The “majority” also relies on Fisher v. Diehl, supra, but the admitted issue in that case was “whether, on petition of the original defendant, the plaintiff’s husband can be joined as an additional defendant in her action for personal injuries.” 156 Pa. Superior Ct. at 483 , 40 A. 2d at 916 . The Superior Court held that such joinder was proper. It observed, after an examination of this Court’s opinion in Koontz v. Messer, supra, that any judgment against the additional defendant would not enure to the benefit of the plaintiff-spouse. Ibid. Surely, that comment does not bind us nor does it control the decision in this case.
Moreover, Koontz did not involve the issue of the enforceability of a judgment. It decided that the husband’s immunity from suit in tort by his wife did not extend to the husband’s master, and that the master could properly seek indemnity from the husband by joining him. It is true that this Court volunteered the observation that the plaintiff-wife could not recover against the additional defendant, her husband. 6 320 Pa. at 494 , 181 Atl. at 795 . HoAvever, no judgment had been entered against the husband. The present issue was not before the Court.
*541 In Kiser v. Schlosser, supra, the jury returned a verdict in favor of the wife-plaintiff solely against her husband (an additional defendant) after instructions from the trial judge that such a verdict was permissible. This Court agreed with the lower court’s determination that this trial error could be corrected by having the judgment stricken from the record. 389 Pa. at 133 , 132 A. 2d at 346 . The issue in Kiser was not the question presently before us. It dealt primarily with the propriety of the grant of a new trial.
In Ondovchik the issue was whether our statute, which prevents direct suits between husband and wife, bars recovery by a plaintiff-spouse on a judgment entered against her additional defendant-husband on a suit begun before the parties were married. Whatever the “majority” thinks of the issue now before us, an examination of the above cases discloses that none of them involved the issue presented in Ondovchik and that Ondovchik was not controlled by those prior decisions.
Moreover, a study of these cases convinces me that we have never squarely decided the issue now raised directly by the merits of this case. We must now decide whether a wife-plaintiff may have the benefit of a judgment entered upon a jury verdict returned against both the original defendant and her additional defendant-spouse. In any event, none of the cases which the “majority” finds compelling, except Meisel , involved either a reference to the statute or an analysis of the policy underlying it. We found such an analysis necessary in Ondovchik; it is likewise essential to a proper approach here.
Although this Court’s decision in Ondovchik rests upon the fact that the cause of action arose and suit was filed prior to coverture, that decision also rests upon the sound ground that no direct suit in tort was instituted by one spouse against the other. Hence, the *542 proceeding there was not in violation of the statute. Nor did the result reached there offend public policy since the litigation itself did not create or promote domestic discord. One spouse did not testify against the other. Both testified to facts which would have placed liability upon the original defendants. The imposition of liability by the jury was not the product of dispute, contention or any other disruptive circumstance between them.
It is clear here that this is not a case of spouses being adverse parties at the institution of suit or during any phase of the proceeding prior to or after verdict and judgment. Nor is the verdict and judgment a product of direct action by one spouse against the other as was sought in Meisel . On the present record, there is not a single, apparent, possible or even suggested element of “potential danger to the marital relationship inherent in such litigation” which the “majority” assumes.
In the absence of any spousal conflict, dissension or disagreement created by the institution of the trespass action itself, there is no basis for concluding, as a matter of fact or policy, that domestic harmony is threatened or destroyed by litigation of the present nature. There is an obvious and significant difference in the impact which direct litigation (such as that in Meisel) may have upon a marriage as contrasted to recovery, as here, on a judgment created by third party litigation in which both spouses unite in a joint effort to place liability upon an original defendant.
All that is prohibited by our statute is direct suit by one spouse against the other on a tort claim arising out of negligence. In the absence of a showing (or even a suggestion) that the circumstances here in any way offend the judicially announced public policy of preventing marital discord, there is no reason for deny *543 ing tlie spouse enjoyment of the judgment. To do otherwise, on this record, is to employ the public policy doctrine where the reason for the rule does not, in fact, exist. So employed, the doctrine is not a concept for preserving domestic harmony, but becomes instead a misdirected application for defeating a fair and just result. Surely, developing concepts of proper responsibility for negligent conduct prompts the rejection of ueedless extensions of immunities.
Realistically and practically, probably the only time one spouse will seek to secure the benefits of a judgment against the other in a trespass case will be in those instances where, as here, the husband has provided a fund for the satisfaction of such judgments by contract or liability insurance. This presents a situation which is especially and particularly free from concern that efforts to satisfy the judgment entail possibilities of a marital discord. Undoubtedly, a wife is one of the persons a husband most desires to protect by his purchase of insurance, yet this protection is precisely what the “majority” needlessly precludes. The “majority” reaches the same result as if Daly’s insurance policy contained a spousal exclusion or an express family exclusionary clause, as was in issue in Great American Ins. Co. v. State Farm Mut. Auto. Ins. Co., 412 Pa. 538 , 194 A. 2d 903 (1963) 7 and Puller v. Puller, 380 Pa. 219 , 110 A. 2d 175 (1955). I question the wisdom of a rule which needlessly and invisibly inserts a large immunity clause into a policy which, on its face, reads otherwise.
Since it is clear that none of the husband’s assets in this case are relied upon for satisfaction of the wife’s judgment, there appears no threat or danger, *544 potential or otherwise, to the marital relationship resulting from the litigation. 8
Whatever may be the justification for the doctrine of immunity which has been imposed in direct tort suits between spouses, I see no reason for extending that doctrine to the instant case. Just as the “majority decision” adds nothing to marital harmony, so too, the judgment which the “majority” reverses contributes nothing to marital discord. The “majority” adds immunity where none is needed and where none is provided for in the husband’s contract for the protection of his wife. The “majority” extends interspousal immunity to an area never intended to be included within that doctrine. It ultimately fails to recognize the realities of the present situation and relies upon a fictional view of the rights and relationship of the litigants.
The conclusion which the “majority” reaches breeds anomalous results. The “majority” acknowledges that if a verdict is entered against both the original defendant and the additional defendant-spouse, the original defendant may enforce a right of contribution from the spouse. 9 The result is that a wife may proceed *545 against a third party, recover her full judgment, and the third party can then recover half of that judgment from the plaintiff’s spouse. In that event, the wife receives the full judgment even though half of the funds, in reality, have come as a result of the judgment against her spouse. On the other hand, the “majority” now holds it is not permissible to allow a wife to immediately recover half the damages from the third party and half from her spouse, the additional defendant. What is precluded directly is permitted by circuity. Marital discord, if any, is no more present in one route of recovery than in the other. Surely, reasoning which leads to so curious an inconsistency should not be the foundation for a rule of law. It lacks the fundamental soundness and reality expected of a prevailing legal principle. 10
The statutory prohibition against direct inter-spousal suits in trespass first enacted in 1893 (and amended in 1913) surely does not require that we today extend immunity beyond the express language of the statute for the benefit of some interest other than the spouses.
I am unable to find any sound, acceptable basis for denying the wife-plaintiff all the benefits of the judgment entered upon the verdict in this case. Her judgment was secured and entered without violation of statute or offense to public policy. Hence, I conclude *546 that this record does not present a case for the application of intersponsal immunity. No spouse lias claimed any; no other interest should be permitted to successfully assert any.
I dissent.
Mr. Justice Mtjsmanno joins in this dissenting opinion.
Only three members of the Court join in the opinion in support of the “majority” result.
The petition was prompted, by a letter from plaintiff’s counsel to the insurance carrier’s counsel which stated that satisfaction of the judgment would be sought against Donald Daly’s insurance carrier, not against Donald Daly individually.
Since only three members of the Court, less than a majority, support this language, the language is not decisional.
The writer of the opinion in Meisel (1962) joined in the Ondovchik opinion (1963).
Act of June 8, 1893, P. L. 344, §3, as amended by Act of March 27, 1913, P. L. 14, §1, 48 P.S. §111: “Hereafter a married. woman may sue and be sued civilly, in all respects, and in any form of action, and with the same effect and results and consequences, as an unmarried person; but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect and recover her separate property; nor may he sue her, except in a proceeding for divorce, or in a proceeding to protect or recover his separate property . . . .”
See also note 10, infra.
“ ‘This policy does not apply ... to bodily injury to . . . any member of the family of the insured residing in the same household as the insured . . .”’ 412 Pa. at 540-41, 194 A. 2d at 904.
Furthermore, nothing appears to suggest collusion or to indicate that the additional defendant, in seeking to impose liability upon the original defendant, failed or refused to cooperate with his carrier.
It is true that no right of contribution has thus far been enforced in this case. This is so because original defendant’s insurance coverage is apparently less than his half of the total judgment. However, we have no way of knowing whether the original defendant has (or may soon have) additional assets. Totally aside from this, the fact that no contribution has so far been elicited in this particular case is a purely fortuitous factor. The judgment could just as well have been for a lesser amount which the original defendant’s assets, or insurance, would have covered. Or, the original defendant might himself have had more extensive assets. Regardless of the factual situation in this particular case, the contradiction which the “majority” result precipitates still exists and will manifest itself in a great many other cases.
It should also be noted that, in the Koontz situation, a master who is sued on a respondeat superior theory may join the plaintiff’s husband as an additional defendant if the husband is the servant whose negligence is alleged to have caused plaintiff’s injuries. This joinder is allowed because the servant-husband may be liable over to the original defendant (the master) for all damages. In this situation, the wife collects her total judgment from the master, who may then recover the total amount of the judgment from the assets of the husband. Thus, in reality, the wife receives the full benefit of her total judgment by enforcement of the judgment, ultimately, against her husband.