Browning v. Paddock , 364 Mich. 293 ( 1961 )

Dethmers, 0. J.

In Parker v. Port Huron Hospital, 361 Mich 1, the majority opinion of 4 of the 7 Justices of this Court participating in the case undertook to change the law in Michigan by overruling the long and consistent line of decisions of this-Court upholding the doctrine of immunity of an eleemosynary institution from liability for the negligence of its employees. In that opinion it was said that its so-called “new ruling” should apply to that case and to all future causes of action arising after September 15,1960, the date of filing of that opinion.

On that date the instant cases, consolidated for purposes of trial and appeal, were pending in this Court on appeal. Their common cause of action, predicated on liability of defendant charitable hospital for negligence of its employees, had arisen in February of 1957, just 5 years after the arising of the cause of action in Parker. On October 2, 1959, summary judgments for defendant hospital had been entered below. From those judgments plaintiffs had appealed here.

These consolidated cases were briefed and argued here in the October, 1960, term on much the same theories, on both sides, as in Parker. The results in the Parker Case were then called to the attention of counsel. The cases were put over, accordingly, until the January, 1961, term of this Court to permit further briefing in the light of Parker.

It is now urged by plaintiffs, inter alia, that the majority opinion in Parker is, in effect, “judicial legislation” and that permitting recovery under it to plaintiff in Parker but denying it to plaintiffs here because their cause of action, which accrued after that in Parker, had arisen before the filing of this Court’s opinions in Parker, would constitute denial of the equal protection of the laws.

In response to all this, I would say that, a majority of the entire membership of this Court not heretofore having embraced the “new ruling” through participation in Court decision, I continue to adhere to the views expressed in Mr. Justice Carr’s opinion in Parker. Consequently, I favor affirmance of the summary judgments for defendant hospital based on the doctrine of charitable immunity.

Affirmed, with costs to defendant hospital.

Carr and Kelly, JJ., concurred with Dethmers, C. J.