(concurring). These cases come under the rule of the majority opinion in Parker v. Port Huron Hospital, 361 Mich 1. The majority decision applied to that ease and to all future causes of action arising after September 15, 1960, the date of filing that decision. See similar treatment by the Illinois supreme court in the case of Molitor v. Kaneland Community Unit District No. 302, 18 Ill2d 11 (163 NE2d 89), and in a subsequent case of Molitor v. Kaneland Community Unit District No. 302, 29 Ill App2d 471 (173 NE2d 599).
Plaintiffs in the instant cases argue that permitting recovery by plaintiff in Parker, but denying recovery to these plaintiffs would constitute denial of equal protection of the laws, contrary to the State *296and Federal Constitutions, since these causes of action arose after that in the Parker Case, but prior to the date of filing the Parker opinion.
The Court said in Parker (p 26) :
“There can be no question of the right of this Court to make the application of the new doctrine prospective or retroactive. See discussion in opinion of Justice Cardozo in Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 US 358, 364-366 (53 S Ct 145, 77 L ed 360, 85 ALR 254) ”
The same argument was made in Great Northern R. Co. v. Sunburst Oil & Refining Co., supra, as in the instant cases. In the Sunburst Case Justice Cardozo said (pp 364-366):
“We think the Federal Constitution has no voice upon the subject. A State in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law nonetheless for intermediate transactions. Indeed there are cases intimating, too broadly (cf. Tidal Oil Co. v. Flanagan, 263 US 444 [44 S Ct 197, 68 L ed 382]), that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted. (Citing cases. ) On the other hand, it may hold to the ancient dogma that the law declared by its courts had a Platonic or ideal existence before the act of declaration, in which event the discredited declaration will be viewed as if it had never been, and the reconsidered declaration as law from the beginning. (Citing cases.) The alternative is the same whether the subject of the new decision is common law or statute. (Citing cases.) The choice for any State may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature. We review not the wisdom of their philosophies, hut the *297legality of their acts. The State of Montana has told us by the voice of her highest court that with these alternative methods open to her, her preference is for the first. In making this choice, she is declaring common law for those within her borders. The common law as administered by her judges ascribes to the decisions of her highest court a power to bind and loose that is unextinguished, for intermediate transactions, by a decision overruling them. As applied to such transactions we may say of the earlier decision that it has not been overruled at all. It has been translated into a judgment of affirmance and recognized as law anew. Accompanying the recognition is a prophecy, which may or may not be realized in conduct, that transactions arising in the future will be governed by a different rule.”
No constitutional right was denied plaintiffs in the instant cases by the decision in Parker.
Prior to the Parker Case plaintiffs did not have a cause of action and did not acquire or lose one because of the Parker decision. See Milwaukee Electric R. & Light Co. v. State of Wisconsin, ex rel. City of Milwaukee, 252 US 100 (40 S Ct 306, 64 L ed 476, 10 ALR 892), affirming 166 Wis 163 (164 NW 844).
See, also, treatment of the Wisconsin supreme court in Kojis v. Doctors Hospital, 12 Wis2d 367 (107 NW2d 131), following Parker v. Port Huron Hospital and in a subsequent amended opinion in the same case recorded in 12 Wis2d 367 (107 NW2d 292), making the opinion prospective from the date of the filing of the decision, except that it was immediately made applicable to the case therein decided.
Affirmed. Defendant hospital shall have costs.
Talbot Smith, Edwards, and Souris, JJ., concurred with Kavanagh, J.