The opinion
Krupansky, J.,
dissenting. Perhaps, as the majority suggests, the rule in Ross v. Burgan (1955), 163 Ohio St. 211 , is not “fair and reasonable” when applied to a situation where the passenger-owner seeks recovery from the driver. The instant action, however, presents a very inappropriate case for reviewing the issues set forth in Ross , and for this reason I must dissent.
Civ. R. 56(C) states:
*14 “ * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *” (Emphasis added.)
In the instant action the Court of Common Pleas, after reviewing plaintiffs answers to interrogatories and responses to requests for admissions, sustained the defendant’s motion for summary judgment, thus determining there was “no genuine issue as to any material fact.” As stated in the facts of the majority opinion, “ * * * answers to interrogatories filed with the trial court indicated no evidence existed concerning the actions of the Brants that day * * * .” (Emphasis added.) The reasonableness of the trial court’s conclusion that this case presents a proper action for applying Civ. R. 56(C) is undeniable when one considers: Mrs. Brant was the only individual known to have been with Dr. Brant in the 24 hours prior to the accident; both Mrs. Brant and Dr. Brant were killed in the accident; and, no other witnesses to the accident were available to testify.
Since no one knows what transpired in the hours, minutes and seconds preceding this accident the plaintiff would find it virtually impossible to prove negligence and proximate cause on the part of Mrs. Brant. Therefore, I feel the action taken by the Court of Common Pleas granting defendant’s motion for summary judgment was correct and should not have been disturbed by the Court of Appeals. In the interest of judicial economy I would reverse the Court of Appeals because with or without Ross, supra, the end product of this case will undoubtedly result in the same or similar action.
I realize there is a duty imposed upon this court to occasionally extend, overrule, or confine the holdings of previous cases. These modifications, however, should only be undertaken when we are presented with a suitable case to implement the desired change. The instant action is not a “suitable case.” In my opinion to remand this cause is an exercise in futility.
I would reverse the judgment of the Court of Appeals and *15 reinstate the Court of Common Pleas’ grant of defendant’s motion for summary judgment.
Locher and Holmes, JJ., concur in the foregoing dissenting opinion.