Sweeney v. Sweeney

• Decision Date: 28 September 1976
• Docket Number: Docket No. 26772
• Citation: 248 N.W.2d 571,71 Mich.App. 428
• Parties: Michele SWEENEY, a minor, by her next friend Alex Eresten, Plaintiff-Appellant, v. Jimmie A. SWEENEY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 571

248 N.W.2d 571

71 Mich.App. 428

Michele SWEENEY, a minor, by her next friend Alex Eresten Plaintiff-Appellant, v. Jimmie A. SWEENEY, Defendant-Appellee.

Docket No. 26772.

Court of Appeals of Michigan.

Sept. 28, 1976.

Released for Publication Jan. 12, 1977.

Sommers, Schwartz, Silver, Schwartz & Tyler by Melissa N. Lee, Ann Arbor, for plaintiff-appellant.

Gordon J. Barnett, Jr., Ann Arbor, for defendant-appellee.

Before BRONSON, P.J., and BEASLEY and D. ANDERSON, Jr., ^* JJ.

ANDERSON, Jr., Judge.

On September 4, 1972, an automobile owned and operated by the defendant, Jimmie A. Sweeney, a Michigan domiciliary, was involved in a single car accident in the State of Ohio, resulting in injury to defendant's daughter. This action was brought in Michigan by the daughter against her father.

Defendant moved for accelerated judgment on the ground that Ohio law follows the doctrine of parental immunity. The trial court held that Ohio law controlled, and granted defendant's motion. Plaintiff appeals.

The doctrine of parental immunity has been abolished in Michigan. Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972). It is followed in Ohio. Teramano v. Teramano, 6 Ohio St.2d 117, 216 N.E.2d 375 (1966).

Michigan has consistently held that a right of action for tort is determined by the law of the state where the accident occurs. Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969); Kaiser v. North, 292 Mich. 49, 289 N.W. 325 (1939).

Plaintiff urges that an exception has been created in cases involving inter-family litigation, relying on dicta in Abendschein and upon the case of Branyan v. Alpena Flying Service, Inc., 65 Mich.App. 1, 236 N.W.2d 739 (1975).

Dictum is not, and should not be considered to be the establishment of a rule of law, particularly in such important areas as are here involved, since it does not result from a full presentation and consideration of all of the factors involved. Certainly this Court should not and will not seize upon dictum as a means of overruling the prior decisions of the Supreme Court.

Branyan is clearly distinguishable from the case at bar. In Branyan no question as to the existence of a cause of action was presented. Branyan dealt only with a limitation on the amount to be recovered, conceding the existence of a cause of action. The present case concerns the very existence of a cause of action, and Ohio has determined that under the facts of this case no cause of action exists.

This case is of the same general classification as those arising under the Uniform Statute of Limitations on Foreign Claims Act, M.C.L.A. § 600.5861; M.S.A. § 27A.5861, requiring the application of a shorter statute of limitations in a...