(concurring in reversal). Once again, as in Myers v. Genesee County Auditor (1965), 375 Mich 1, 12, 13, I cast my vote to overrule Lewis v. Genesee County (1963), 370 Mich 110. I join also in vacating the summary judgment entered in defendant’s favor in this case of Keenan and in remanding the cause for trial.
While five of the seven participating Justices in Myers joined in our decision to reverse and remand the trial judge’s decision in Myers, only four of us planted our decision upon abrogation of the rule of governmental immunity as applied to tort actions against counties, Mr. Justice Black having concurred only in the result of Mr. Justice O’Hara’s opinion. The question becomes, then, whether the decision of the four Justices out of seven participating in Myers, to abrogate the rule of county im*62munity to tort actions, carries precedential weight for other like cases including the case at bar. There is apparent authority in Michigan that it does, that a decision of a majority of participating Justices, even when made by less than a majority of the full Court, shall be regarded thereafter as of precedential force under the doctrine of stare decisis. Dolph v. Norton (1909), 158 Mich 417. While I acknowledge that the Dolph Case can be read, as it appears to have been in Scott v. Sullivan (1911), 164 Mich 467, in support of adding the weight of stare decisis to a decision of four out of seven participating Justices of an eight-member Court, I do not believe that such a reading survives careful analysis.
In Dolph v. Norton the question arose whether decision in that case was controlled by the Court’s prior decision in Weller v. Wheelock (1908), 155 Mich 698. The Weller Case was first submitted to the Court on January 10, 1908. Before decision therein, Mr. Justice Carpenter, resigned from the Court on September 15, 1908, and his replacement, Mr. Justice Brooke, was not elected until November, 1908. 154 Mich iii. In the meantime, on October 8, 1908, Weller v. Wheeloch was reargued to the Court, then consisting only of seven Justices. The Court’s decision in Weller was announced on November 30, 1908. It was by a f our-to-three division of the Court, a Court which consisted only of seven Justices at the time the case was reargued in October. In the following year, in Boughner v. Bay City (1909), 156 Mich 193, doubt was cast by the Court upon the precedential weight to be given its earlier decision in Weller, the decision in that case having received the approval of less than five Justices. 156 Mich 198,199.
Then, in Dolph v. Norton, seven of the eight Justices participating in Dolph signed an opinion con*63ceding the weight of stare decisis to Weller v. Wheelock in the following language (p 422) :
“All of the Justices, there being at the time but seven, participated in the decision of Weller v. Wheelock. I find no good ground for declaring that in such a case the decision of a majority shall not be received as stare decisis, as establishing the law, not only for the particular case but for other like cases. There remains, of course, the right and the duty to overrule decisions found to be erroneous.”
This quoted statement followed a short discussion by the Court of its then current practice, sanctioned by statute (PA 1903, No 250), of sitting for the transaction of business in panels of five Justices and of calling for resubmission of cases to the full Court whenever the five Justices to whom the case originally was submitted were unable to agree, the stated practice resulting (p 422) “in expediting the business of the Court and in securing, what is desirable, the concurring opinion of a majority of the Judges.”
Thus, the majority’s decision in Dolph v. Norton, insofar as here pertinent, stands for no more than this: When a decision is reached by a majority of the Justices of the Court, as the Court is constituted at the time the case is submitted for decision, that decision thereafter is to be considered of precedential weight as to the issues decided by such majority. Arguably, Dolph v. Norton could be read to mean that a decision made by a majority of participating Justices, whether a majority of the full Court or not, is of precedential weight by virtue of the doctrine of stare decisis, as appears to have been the reading of Dolph v. Norton by the Court in Scott v. Sullivan (1911), 164 Mich 467. But, for the reasons stated, I do not believe such a reading survives careful analysis of the majority’s opinion in Dolph v. Norton.
*64Furthermore, the objectives sought to be achieved by the doctrine of stare decisis—stability of law and its concomitant predictability—are far more certain of achievement when a majority of the full Court commits itself to a statement of law binding-on all other courts in the State and subject to change thereafter only upon further action by a majority of the full Court, by the people themselves by constitutional amendment, or, in some cases, by legislative action. On those relatively few occasions when less than a majority of the full Court agrees upon the rationale for decision, it seems desirable to me to leave any question of law not resolved by a majority of the Court open for our Court of Appeals and our trial courts to decide as a matter of first impression, the discussions of the issue in our divisive opinions providing, hopefully, intellectual stimulus to our bench and bar in the lower courts. Similarly, new trial and appellate court decisions on different but similar facts involving the same issue, when appealed to this Court, would provide our membership another opportunity for contemplation of the issue and, hopefully, for ultimate majority accord in its resolution. That process, it seems to me, conforms with our common-law tradition whereby the body of judicial law is developed on a case-by-case basis and whereby no issue is resolved for the future until a court’s majority reaches accord and only so long as that court’s majority maintains that accord.
The foregoing views considered, I agree with Justice Black that while a majority of this eight-member Court joined to reach decisional accord in Myers v. Genesee County Auditor (1965), 375 Mich 1, a majority of this Court, as distinguished from a majority of the participating Justices, did not agree upon a rationale'for decision and, therefore, our decision in Myers cannot be regarded as of precedential force in this case of Keenan.
*65Nor am I able to agree that the Court now can give to Myers, ex post facto, that precedential force which it did not achieve when we announced our decision in Myers in March of 1965. The effect of our decision and opinions in this case of Keenan, as I understand them, is, therefore, that, while only a minority of the Justices would regard Lewis as having been overruled as of March of 1965, a majority (T. M. Kavanagh, C. J., and Souris, Smith, O’Hara, and Adams, JJ.) agrees that Lewis is overruled at least as of our decision today. The significance of this distinction lies in the fact that, in addition to all pending cases, only those claims against counties for negligent injury which arose after the commencement of the three-year statutory1 limitational period preceding our decision today and prior to July 1,1965, the effective date of PA 1964, No 170,2 rather than those which arose within the three-year period prior to our decision in Myers, in March of 1965, will be freed from the common-law defense of county immunity to actions for negligent injury, which defense we abrogate today by overruling Ijewis.
The limitational period applicable in this ease of Keenan is found in CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605). See, currently, CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805).
CL 1948, § 691.1401 et seq. (Stat Ann 1965 Cum Supp § 3.996 [101] etseq.).