Mosier v. Carney

*587Black, J.

(dissenting).

“Overruling a precedent always introduces some confusion and the necessity for it may be unfortunate. But it is as nothing to keeping on our books utterances to which we ourselves will give full faith and credit only if the outcome pleases us. I shall abide by the Williams Case [Williams v. North Carolina, 317 US 287 (63 S Ct 207, 87 L ed 279, 143 ALR 1273) ] until it is taken off our books, and for that reason concur in the decision herein.”

The words are those of Mr. Justice Jackson, written in Magnolia Petroleum Co. v. Hunt, 320 US 430, 447 (64 S Ct 208, 88 L ed 149, 150 ALR 413). I mean to apply them, along with my adherence to right or wrong Harvey v. Harvey, 239 Mich 142; Riser v. Riser, 240 Mich 402; and Kircher v. Kircher, 288 Mich 669, no matter whether this opinion turns out to be one of dissent or one of concurrence.

Benefited by firsthand experience during the past 3 to 4 years, culminating as of now with the handing down of Currie v. Fiting, 375 Mich 440, I would not even consider either the open or silential overrulement of a matured, unanimous, and long since accepted and applied judicial interpretation of a long standing statute, even though — according to my view — such interpretation was wrong from the beginning. To do so amounts simply to judicial amendment of a statute, and that is barred upon oath — by section 2 of article 3 of the 1963 Constitution — as outright usurpation of all lawmaking power. And the wretched iniquity of such judicial practice is that it leaves the legislature in position where it knows not what legal words and phrases are employable with dependable safety and assurance as that body goes about writing and debating statutes and amendments of statutes.

*588Justice Kelly, writing to affirm what was judged below for all three of these cases, has put still another finger on the lurking dangers of overrulements that are not confined within explicitly riveted words.1 I in turn am the more convinced that any further overrulings by this Court, whether the decision or decisions to be overruled deal exclusively with the common law, or consist of sharply dissident opinions construing an unamended statute, or consist of decisions which “themselves are in turmoil and conflict” (Sheppard v. Michigan National Bank, 348 Mich 573, 602), should by express declaration be made effective for the future only, as was done in the Montana case (Sunburst Oil and Refining Co. v. Great Northern R. Co., 91 Mont 216 [7 P2d 927]) which Sunburst (Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 US 358 [53 S Ct 145, 77 L ed 360, 85 ALR 254]) affirmed. At this point, again as in Williams v. City of Detroit, 364 Mich 231, 283, Cardozo’s infallible wisdom is offered:

“ ‘The objection will be made that courts are without power to tie the hands of their successors by a declaration of purpose not wrought into a judgment. If I conceive the situation justly, they are not attempting to tie the hands of anyone. They are untying and releasing. A fair paraphrase of what they say is this: “ ‘The rule that we are asked to apply is out of tune with the life about us. It has been made discordant by the forces that generate a living law. We apply it to this case because the repeal might work hardship to those who have trusted to its existence. We give notice, however, that anyone trusting to it hereafter will do so at his peril.’ ”

*589My views supporting the principle of prospective overrulement were written at length in Williams (364 Mich 283). That was more than four years ago. Now, in this month of July, 1965, one need hut compare Mapp v. Ohio, 367 US 643 (81 S Ct 1684, 6 L ed 2d 1081, 84 ALR2d 933), with recent Linkletter v. Walker (June 7, 1965), 381 US 618 (85 S Ct 1731, 14 L ed 2d 601), to perceive what happens inevitably when a court of last resort, having determined to overrule a case or cases, tries either to straddle or decides to overrule with retrospective effect. Four members of this Court tried to walk astride both sides of the thorny fence of overrulement in Williams (364 Mich 250 through 270), and the Illinois supreme court accomplished that feat—by majority vote— in Molitor v. Kaneland, 18 Ill 2d 11 (163 NE2d 89). For the hair shirt and linsey-woolsey pants Molitor manufactured for the courts of Illinois, see the Williams Case at 286 and 287; “Tom Molitor and the Divine Right of Kings,” cited and quoted in Williams on said pages 286 and 287, and Shepardize Molitor again—in this year 1965.

These cases of Hosier, Smith, and Dood present a duplicate of what became standoffs in Burns v. Van Laan, 367 Mich 485 and Halfacre v. Paragon Bridge & Steel Co., 368 Mich 366. In Halfacre a 35-year-old statute was found by five of us as having been construed and applied by the Court one way—an indefensible way—on three separate, consistent, and unanimous occasions; yet four of us found that such construction and application was firmly rooted in that statute. As for the cases at bar, going back to Harvey’s interpretation and application in 1927 of then and presently applicable statutory provisions (CL 1915, §§ 12356, 12357; CL 1948, §§ 612.5, 612.6 [Stat Ann §§ 27.657, 27.658]), which provisions and *590their previous applications have so far barred all three present suits, we find that our Court long ago read such provisions, unanimously, as an intendment of the legislature that interspousal tort actions not be maintainable. In the meantime (by PA 1927, No 389 and again by PA 1943, No 242) the legislature ordained that “All general laws in force in this State” should be collected and compiled “without alteration,” and directed that such compilation be duly published. That was done, and so came into being the Compiled Laws of 1929 and the Compiled Laws of 1948. Is this not specially cogent evidence, extending over the years since the respective compilations of 1929 and 1948, of calculated legislative acceptance of said sections 612.5 and 612.6, as those sections were viewed and applied by and since the date Harvey was handed down?

The above is not the only record evidence of implied legislative approval of this Court’s interpretation and application — of the cited two sections — as made in Harvey, Riser, and Kircher. Bearing always in mind that the instant rights of action arose —if they arose at all — prior to the effective date of the revised judicature act (CLS 1961, § 600.9911 [Stat Ann 1962 Rev § 27 A.9911]), we find that the cited two sections remained unamended until they were expressly repealed by that act (CLS 1961, § 600.9901 [Stat Ann 1962 Rev § 27 A.9901]). By the same act the following new section came into being (CLS 1961, § 600.2001 [Stat Ann 1962 Rev § 27 A-.2001]):

“Actions may be brought by and against a married woman as if she were unmarried.”;

and the accrued right of defendants Carney, King, and Mosher, to defend these suits, on strength of. interpreted and applied sections 612.5 and 612.6, was expressly preserved. For such express preserva*591tion, see CLS 1961, § 600.9905 (Stat Ann 1962 Rev § 27A.9905).

The assembled evidence of legislative acquiescence in, and of affirmative legislative acceptance of, the construction which had been placed on said sections 612.5 and 612.6 during the 1920’s and 1930’s is quite as strong as that which was recounted in Half acre. It is stronger, in one respect. The error of the three earlier decisions considered in the Halfacre Case (Boshaw, Blanton, and Walker), cited in that case at 382, was so gross that no one attempted seriously to defend it. Yet four of us found that the legislature had long since acquiesced in and had accepted such construction and application.

It is immaterial now that Harvey, Riser, and Kircher may have been wrong. That is sharply debatable considering “the present ambivalence of thought upon this question,” which ambivalence Justice Souris has so ably examined in his brief for reversal. What is important is the sanctity of the legislative process and the fact of years of acceptance, by the legislature, of what by Harvey, Riser, and Kircher became—years ago—an integral part of said sections 612.5 and 612.6.

One may agree, upon strength of Justice Souris’ well reasoned 1965 view of these old statutory provisions distinguished from judicial view thereof as taken in 1927 (and again in 1939), that this statutory bar—as found by the Court in Harvey, Riser, and Kircher—of interspousal suits for tort has become both unreasonable and outmoded. The legislature may—I say “may”—have come to just that conclusion in 1961 when it repealed such provisions and enacted said section 2001 (CLS 1961, § 600.2001 [Stat Ann 1962 Rev §27A.2001]). But again, as pointed *592out solo by the writer in Currie v. Fiting, 375 Mich beginning at 458, and approved Per Curiam a month later in Husted v. Consumers Power Co., 376 Mich 41, 54, “legislative intent is determinable properly by what was at the time of enactment, rather than what might appear a half century later—by hindsight” (citing Wayne County Road Com’rs v. Wayne County Clerk, 293 Mich 229, 235; Platt v. Union Pacific R. Co., 99 US 48, 63, 64 [25 L ed 424]; 50 Am Jur, Statutes, § 236, p 224).

The statutory provisions scrutinized here remained until 1963 as enacted in 1915. Could Justice Souris, had he been a member of the Court when Justice Wiest wrote Harvey, have made the same arguments for liability as are now made by him? No one, I trow, will answer affirmatively. Today’s facts just weren’t present at that time for scrivening. Better to say that the new provision of 1915 as advanced in Harvey by attorney Howard L. Campbell was legislatively intended, in 1915, to provide proper ground for distinguishment of 1898 Bandfield. The provision read then, as it read when all three of these causes allegedly arose :

“Whenever a cause of action shall accrue to, or arise against any married woman, she may sue or be sued in the same manner as if she were sole.” (CL 1915, § 12357.)

I have separate as well as concurrent thoughts for the action which, by express allegation, was brought by administrator Mosier pursuant to and on the exclusive authority of section 1 of Michigan’s wrongful death statute (CL 1948, § 691.581). 6 For *593more than a century that section has conditioned the special cause of action created thereby upon right of the decedent to sue and recover damages as against the wrongdoer “if death had not ensued.” By said section 1 Mr. Carney was not “liable,” and now" is not liable, unless suit by Mrs. Carney could have been maintained against her husband had she survived. The statute has said so ever since 1848 (No 38) and says so today. I am reasonably sure that every Justice seated here knows that. So in order to reverse Judge Parker’s dismissal of administrator Hosier’s suit this Court must amend said sections 612.5 and 612.6, nunc pro tunc as of August 21, 1958 (the date Mrs. Carney was fatally injured), to provide that the two sections mean something other than what they have continuously meant, on the legislative and judicial record, between the date Harvey was handed down in 1927 and the effective date of repeal, by the legislature, of said sections 612.5 and 612.6.7

As written in Currie v. Fiting, supra, I oppose judicial amendment of statutes. And the nunc pro tunc amendment of said sections 612.5 and 612.6, made now in order that the Court may reverse two of the three judgments below, is just too much of a power intoxicant for swig by this more delicately ordered member of the Court. Nearly seven years of retroactive effect like that, made for the special benefit of two plaintiffs at bar, spells invidious discrimination; a subject that was given more than passing attention by one of us in Williams, 364 Mich at 290.

Conclusion.

This Court’s error, if error there was in unanimous Harvey, Riser, and Kircher, has been ac*594quiescently accepted by the legislature. That makes said sections 612.5 and 612.6 mean for all plaintiffs at bar what they meant for plaintiffs Harvey, Riser, and Kircher; likewise what those sections meant to the legislature during all the years between June 6, 1927 (the date Harvey was handed down) and January 1, 1963 (the date of effect of the revised judicature act [CLS 1961, § 600.9911 (Stat Ann 1962 Rev § 27A.9911)]). The Court’s solemn word was given to the profession by Harvey, Riser, and Kircher. Trustingly relied upon, now it is sullied.

It is not so much what the legislature enacted, prior to release of Harvey, Riser, and Kircher, that counts now in the judicial process. What really should control us is that which the Court told the legislature said sections 612.5 and 612.6 meant; followed by 34 years of legislative concurrence therewith. The legislature, supposedly in exclusive charge of the policies of our State and of enacting and amending laws best suited to those policies, refrained steadily from changing the two sections until after all three torts as presently alleged had been committed. That fact calls for affirmance of the respective judgments as entered below.

Dissenting in Mahnich v. Southern S. S. Co., 321 US 96, 113 (64 S Ct 455, 88 L ed 561), Mr. Justice Roberts wrote an appropriate as well as prescient conclusion for views as expressed above; a conclusion which — now—finds ample support in ink-fresh Linkletter v. Walker, supra:

“Of course the law may grow to meet changing conditions. I do not advocate slavish adherence to authority where new conditions require new rules of conduct. But this is not such a case. The tendency to disregard precedents in the decision of cases like the present has become so strong in this court of late as, in my view, to shake confidence in the consistency of decision and leave the courts below on an un*595charted sea of doubt and difficulty without any confidence that what was said yesterday will hold good tomorrow, unless indeed a modern instance grows into a custom of members of this court to make public announcement of a change of views and to indicate that they will change their votes on the same question when another case comes before the court. This might, to some extent, obviate the predicament in which the lower courts, the bar, and the public find themselves.”

My considered opinion is that the 1963 Constitution of Michigan (art 3, § 2) requires that this Court refrain from legislating responsibility for tort liability as alleged against defendant Carney in No. 50142, and against the defendants in Nos. 50360 and 50410. I therefore vote to affirm, without an award of costs.

Supplement (November 12, 1965):

The internal history of these cases, catalogued by date and event from the beginning of our consideration to the writing of this supplement, will describe pretty well the tenterhooked position into which present opinions will thrust the profession and the subordinate court judges of Michigan. Now for that history.

These cases came to final submission January 7, 1965. Justice Souris submitted his foregoing opinion for reversal February 24, 1965. Justice Kelly wrote as above to affirm June 17, 1965. My opinion for affirmance, above, was turned in July 2, 1965. Justice Smith wrote to affirm July 13, 1965. That day the Court signed opinions which resulted in affirmance by an equal division of the Court. Only the automatic effect of an intra-Court resolution, passed during the previous month to arrest opinions resulting in a tie vote, prevented delivery of the four signed opinions to the clerk’s office.

*596Justice Smith, advising October 1st that “I find that I am no longer in agreement with my former position,” wrote to reverse. His present opinion, summed up, arrives at this position of certain uncertainty :

“In' its broad sweep, the reasoning in Justice Souris’ opinion goes well beyond the necessities of the 3 cases. Although in some situations, this may be good judicial craftsmanship, I doubt its value in this kind of gate-opening decision. In this situation, it has the effect of a broad come-one, come-all’ invitation. The opinion will likely be construed as erasing, in the ultimate analysis, interspousal immunity in every conceivable type of tort case, from the grossest intentional tort down to the chronic irritants present in many marriages. I wish it to be understood, then, that in concurring in the holding of Justice Souris’ opinion, I am not voting for the abolition of all interspousal tort immunity in Michigan, but for the specific result in the cases lief ore us.”

Turning now to Justice O’Hara. He has written for these cases, under date of October 18, 1965:

“I am not prepared to abrogate judicially all inter-spousal tort immunity. I agree with Mr. Justice Kelly’s expressed view that this whole sensitive area would be better left to legislative determination. However, the question is now presented for judicial determination and I do not feel I may rest upon legislative inaction because of a basic social change that has eventuated since the doctrine evolved in our State.”

Even the devil, having determined to move in on the courts of Michigan for the purpose of stimulation and maintenance of honest or dishonest litigation between members of a family, could do no better job than that which is due to sprout from the sum of our opinions quinqué. The Court, having determined to reverse for reasons a majority of the Justices will *597not indorse, is committed to the flood, out of which it cannot swim. If by majority action the Court is ready to repudiate, just for some of the cases at bar, Riser’s mature interpretation and application of present sections 612.5 and 612.6 (CL 1948) and, at the same time, is ready to enact a retrospectively effective amendment of section 1 of the wrongful death statute (CL 1948, § 691.581) so as to make the defendant Carney “liable to an action for damages,” for which damages he simply did not become “liable” August 21, 1958 for want of right of his fatally injured wife to “maintain an action and recover damages in respect thereof” as against him, then unforeseen “extensions” of such judicial action, involving mainly the common law, are due surely to confront us. Examples will presently appear.

But first let us consider Justice Souris’ declaration of picked and chosen devotion to the recently announced views of the Minnesota supreme court, found by him in Shumway v. Nelson, 259 Minn 319 (107 NW2d 531), and Poepping v. Lindemann, 268 Minn 30 (127 NW2d 512). Whatever one may think of those views, opposed as they are by the clear weight of authority and the even more recent decisions in Saunders v. Hill, — Del — (202 A2d 807), and Jones v. Pledger (DC DC), 238 F Supp 638, one thing stands forth. It is that section 1 of our wrongful death act is a true Lord Campbell’s act (see quotation of that act in Hyatt v. Adams, 16 Mich 180, 193); whereas by direct concession of the Minnesota court the wrongful death statute of that State is distinctively different (“because of the particular language of our death-by-wrongful-act statute and the construction placed upon it, they [authorities from other jurisdictions] are of but limited assistance”).9

*598From the very beginning, 117 years ago, section 1 of our statute has provided a specific of unmistakably worded precision, that is, liability of the actor provided the wrongful act alleged against him “is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereofThere is a quasi-legal presumption that everyone seated here can read simple English; also that he knows Mrs. Carney could have maintained no action against her husband and could have recovered of and from him no damages on account of the wrongful acts alleged by the plaintiff administrator. Her husband wasn’t liable to her before she expired in 1958; therefore under the statute he isn’t liable to her administrator. If Mr. Carney is to be made liable as claimed, such liability will have to be created by judicial amendment of a statute; an amendment the Court — acting nunc pro tunc with a vengeance — must make effective as of more than seven years ago.

In the cited Delaware case the court said all that need be said further (202 A2d 807, 810):

“Plaintiff has been unable to show any express language in the wrongful death statute which indicates a legislative intention to abrogate the common-law rule of immunity from suit. In fact, the statute supports the opposite conclusion, since the statute presupposes the ability of the decedent to have brought a personal injury action had he lived. We, therefore, are of the opinion that the wrongful death statute does not create an exception to the normal immunity from suit between husband and wife. If a change is to be effected in the well-settled public policy of this State, such change must be effected by the legislature and not by this court.”

The aforesaid events of 1965 evidence the more an accelerated pace of our new majority toward insou*599eiant and wholly nneonstitntional statutory amendments, all ex post facto. Consider this:

Sis months ago Justice O’Hara, writing in the Currie Case (375 Mich 440, 456, 457), found that the legislature had “acquiesced” in a rule of damages found by him in Wycko’s majority opinion (361 Mich 331) and, consequently, that that opinion (then and now wrong in his view)10 must be followed. Wycko, when Currie was handed down, was less than five years old. That makes less than five years of legislative “acquiescence” in one — just one — not exactly unanimous decision. With that, compare what is before us. Thirty-eight years ago the Supreme Court of Michigan decided, unanimously, that a presently applicable statute forbade interspousal suits for tort (Harvey, 239 Mich 142). Twice thereafter, the Court being unanimous on each occasion, such forbiddance was reaffirmed (Riser, 240 Mich 402; Kircher, 288 Mich 669).

Turn now to what Justice O’Hara said about our subject: “The sword of presumptive legislative notice of judicial decisions cuts both ways.” (Currie at 456.) It is significant, I respectfully suggest, that my Brother abstains from present wield of his metaphorical sword. It must be a saber, not a claymore, since it does not cut both ways. Now we see that it cuts only when a judicial pronouncement of legislative acquiescence favors a plaintiff in tort; not a defendant. Thus ivas the doctrine of legislative acquiescence right for Currie, and thus is it shunned now like leprosy.

*600Once, when this Court was called upon to interpret and apply a statute, the Justices sought to ascertain the intention of the legislature with respect to the specific problem at hand. Here, though, not one of the Brethren writing for reversal is willing to announce a finding — take section 1 of the wrongful death statute for illustration — that the legislature when it met in 1848, or the legislature when it met in 1871, or the legislature when it met in 1939, intended by the enactment and re-enactment of said section 1 to make the defendant “liable to an action for damages” regardless of whether that defendant’s “act, neglect or default” is or is not such “as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages.” In these curious circumstances no one can deny that the plain duty of ascertainment of the applicable legislative purpose, as of enactment time (Husted v. Consumers Power Company, 376 Mich 41; syllabus 9), has been nonchalantly renounced. We are told instead that section 1 has become outmoded by the intervention of new conditions; hence that it should be applied according to such new conditions rather than in accordance with the enacting and re-enacting intent of 1848, 1871, and 1939. Behold the retroactive amendment, by judicial order, of a century-old statutory provision.

Where will our current opinions leave members of the profession, and the clients they must advise? The answer has to be — with quicksand law only for the deluge of intra-family litigation that is sure to follow. By what Justice Smith refers to as “this kind of gate-opening decision,” have we not issued coy suggestion that suit by Reggie against duly insured father, the latter having backed over Reggie’s father-gifted now motor scooter, will now be entertained (Elias v. Collins, 237 Mich 175 notwithstan*601ding)? May not mother hold Reggie, Reggie being legatee of grandpa’s fortune, damage-responsible for that sagging sacroiliac suffered when, bedecked and late for the PTA, mother has sallied forth only to step on Eeggie’s carelessly deposited skateboard (see the established rule of the common law, annotated in 60 ALR2d at 1284) ? What will the litigatory result be should Reggie (endowed as above and being more than 7 years old; Queen Insurance Company v. Hammond, 374 Mich 655) carelessly set fire to and destroy the family home, the home being partly insured only and father having been grievously hurt by an ungraceful escape through one of the second story windows? Will not the Court ultimately be pressured into holding father liable to mother, for some real or colluded tort resulting in an injury sustained within or about the home, father being the owner and carrying what is called “comprehensive coverage” thereon?

This Court’s primary duty is that of reporting precedentially, for the guidance of her people, the common law of Michigan, and of ascertaining precedentially, for the same informative purpose, the legislatively intended meanings of laws enacted by the legislative branch. Now, though, having strayed from these duties, the newly arrayed overrulers of the Court will have no way to control the Frankenstein they are about to turn loose. No judge dare say that this new rule of intra-family liability shall be limited as to recoverable amount by the maximal amount of liability insurance the defendant member may carry. No judge can write, into such newly created right of action, a proviso such as appears in the New York statute to which Justice Kelly has referred, ante, p 585, that is, “no insurance, no recovery.” Sadly though, when they have sufficient votes here, members of this Court can force the whole *602profession to wander with them through Stygian legal darkness, with an unpredictable golem at large, until the personnel of the Court has come again to decisive change.

To attain its righteous goals the 'wholesome liberalism of the law must be sipped and savored with the salutary care of progressive moderation. When gulped and guzzled in quantity, however, legal liberalism quickly becomes a habit-formiug intoxicant, driving some hitherto respected juristic minds to more and more extensional excesses until there is no cure. With nothing left but the doubtful value of estimation by lawyers of the prospective condition of judicial satiation and surfeit with overrulings, there now is no reliable law in the peninsular State. No statute, however mature, well understood and continuously applied, is immune from new and novel “interpretation,” or even from outright amendment by judicial order guised as an act of overrulement.11 No unanimous decision involving some long standing statute, even though handed down by the Cooley Court, is safe from casual repudiation. Indeed, this year’s frightening record of more and more motions by Justices (a) to overrule unanimous decisions of the Court, made by men of renowned superior competence once seated here, or (b) to amend, by judicial act, long standing statutes by simply rewriting them so they accord with majority desire, or (c) simply to take over a part of the legislative process from time to time on plea that the legislature is just too busy to legislate fully and effectively,12 proves *603that portsided liberalism is making a runaway train of the Supreme Court of Michigan with the law’s “quest for certainty” long since cast aside.

Americans are still being taught that everyone is presumed to know the law; that ignorance of the law will never be listened to as an excuse in the courts of the land. All lawyers and judges too, as I presume, have received like training. But what are citizens standing at the bar of justice, and the counsel representing them respectively, to do when there is no way to ascertain the law for personal or professional guidance except surmise and conject what a bare majority of this appellate court, swinging as it does today like Chaucer’s wedercok, later on will say it is? Slowly, by force of all these motions to meddle judicially with dislikable statutes, we are forging over the outer door of this Court a warning much like that which Dickens depicted in Bleak House (Heritage edition, ch 1, p 17):

“This is the court of chancery; * * * which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give—who does not often give—the warn*604ing, ‘suffer any wrong that can be done you, rather than come here!’ ”

The only hope today is that Michigan’s new insulator between her trial courts and this Court, the Court of Appeals that is, will for a time buffer the ominous portents of all these 1965 acts of legislation by the judicial branch. After all, the judges of subordinate courts are sworn to follow our mature and settled decisions as they stand, not to guess whether and which ones this Court will reject or accept, and time begets sanguinary trust that our errantly headstrong will sooner or later perceive the effect of what they have done, in 1965, to that great precept, equal justice under law. Nothing, absolutely nothing, is more vital to continuity of America’s constitutionally continuant experiment of government by law than the stability and, therefore, the common understanding of the law as written; the law all citizens are required to observe, learn, respect and conform to.

It is a pity that appellate court judges, detached as they become from the evidentiary realities of our trial courts, do not listen more to experienced trial lawyers and trial judges. While we deliberated upon these long pending cases Circuit Judge David Anderson delivered a sobering as well as painstaking address, titled “Interspousal Immunity,” before the annual meeting of the State Bar Negligence Section, convened at Mackinac Island May 30, 31, 1965. Judge Anderson’s worthy-of-thought conclusion was this:

“The necessity for developing and imposing restrictions is recognized by the advocates of inter-spousal liability. But the development of such restrictions by judicial decision is a long and time consuming process. It appears to me—and if you *605want to go home and tell someone what my talk was about, this is it — it appears to me that the conclusion is inescapable that if change is to come in this field it must and should come through legislative enactment. Here, at one time, the public policy of the State could be determined by the body supposedly vested with the power and duty to so determine it, and the necessary conditions and restrictions could be imposed.”

With requisite deference, I suggest that if today’s majority is hotspurred toward overruling Harvey, Riser, and Kircher, its act of overrulement should be effected in such way as to avoid a most unfair letdown of those who are taught to obey and apply law as it stands written, and to advise their clients according to law thus written. The unconditional word of the Court was pledged on the record by Harvey, Riser, and Eircher. Did not counsel for the defendants Carney and King rightly rely upon Harvey, Riser, and Kircher, back in 1961 and 1962 when Mr. Carney and Mrs. King were sued? Did they not rightly rely, later when these appeals were taken, on the same three cases? This Court should make good its own representations, just as it forcefully imputes to nonjudicial representers the intention of making good what by representation they have induced.

Refer to section 234 of the new text of American Jurisprudence (20 Am Jur 2d, Courts, pp 562, 563). The complete section follows:

“Sec. 234 — Change in construction of statute
“The overruling of a judicial construction of a statute will not be given retroactive effect. Such a decision will be limited to the effect ordinarily inherent in a legislative change of a statutory rule, that is, merely prospective effect. This principle has been applied, for example, to a change, by reversal of prior decisions, in the judicial construction of a statute of descent.”

*606Even Professor Keeton, previously quoted, stands for this worthy view. It is developing swiftly out of necessity as well as fairness. See Linkletter v. Walker (handed down by the Supreme Court June 7, 1965), cited supra at page 589.

Professor Keeton said (same talk at Miami Beach):

“The notion that judges are engaged in merely finding law rather than making it is now thoroughly discredited. But, to paraphrase a familiar observation about another dead letter of the law, this discredited notion still rules us from its grave. Surely it is largely responsible for persistence of the view that decisional law must be applied retroactively and not prospectively alone. Why else should courts deny themselves the power to give effect to the elemental principle of justice that, absent compelling countervailing interests, notice should be given before a change in law becomes effective? * * *
“The point is well established, then, that use of measures of prospective judicial law-making is within our legal tradition. Prospective overruling of decisional law is not a departure from the traditional functions of courts, but at most a newly prominent perspective on a function courts have been performing since the dawn of the common-law tradition.”

By way of conclusion of his opinion Justice Kelly has pointed out that the result proposed here by Justice Soubis would become an open invitation to attacks upon immunity from tort liability in all kinds of cases, regardless of legislative action and long since settled judicial applications of such action. Surely, for a while at least, we have seen enough of such attacks — in tort cases — on mature statutes and venerably unanimous interpretations thereof.

Paragraph 3 of administrator Hosier’s declaration reads:

“Plaintiff brings this action pursuant to CL 1948, § 691.581 (Stat Ann § 27.711) commonly known as 'the death act.’ ”

The effective date of such repeal was January 1, 1963 (CLS 1961, § 600.9911 [Stat Ann 1962 Rev § 27 A.9911]).

The quotation is from the Shumway Case, p 323.

Hardly two months ago Justice O’IIaba, manifestly disturbed as he continued to behold Wycko, wrote this for Wilson v. Modern Mobile Homes, 376 Mich 342, 355:

“I can find no error in the charge, but I write separately to indicate my agreement, that Wycko be reconsidered as suggested by Mr. Justice Kelly and Mr. Justice Black. My concurrence in the application of the extant rule was based upon the principle of legislative acquiescence.” (Emphasis supplied by present writer.)

Looking back over the intervening months since Justice Adams joined others at the helm, People v. Holbrook, 373 Mich 94, stands forth as preeursive of this Court’s present hard-aport course toward the shoals of lost public confidence.

Such plea comes most recently from the brilliant address of Harvard Professor Robert E. Keeton, delivered during the annual conference of Chief Justices at Miami Beach this past summer. Dwelling upon the subtopic “Increasing institutional limitations upon the potentiality of legislatures for reforming law,” Professor Keeton *603takes studied position that State legislatures are no longer able to perform—fully tliat is—the task which by constitution is assigned to them; that, therefore, the courts should pick up and perform the legislative slack.

Whatever one may think generally of this intriguing idea, I suggest it is not for Michigan. With our touted new “full-time and fully paid legislature,” can there be any excuse for application hero of such doctrinism? How in any event may this Court apply it and yet avoid evasion of Michigan’s 130-year-old mandate to maintain due separation of her tripartite branches? See Justice Cooley’s grim reminder in People, ex rel. Sutherland, v. Governor, 29 Mich 320; also section 2 of article 3 of the present Constitution of Michigan.

Copies of Professor Keeton’s address were delivered to our membership, in the company of glowing comment by Chief Justice Kavanagh, immediately following the Miami Beach conference.