The opinion
M. S. Coleman, J.
(dissenting). The basic issue which confronts this Court concerns the propriety of the grant of summary judgment which, as an instrument of the trial court, rarely has been sustained of late. Naturally, such exercises of judicial discretion should be undertaken wdth great care and deliberation. Litigants have a right to present and be judged on well-founded issues. However, by adopting the language of Justice Williams we wdll eliminate any practical utility which summary judgments may possess.
This cause of action is predicated solely upon the dramshop act. Its statutory definitions and precedential interpretations require the plaintiff to prove, in part, that the defendant bar served an individual while intoxicated. There is nothing in the record before this Court which can support an *381 allegation that Contardi was intoxicated when served by any of the defendant establishments. Contardi’s activities were traced over a 12- or 13-hour period. There are no witnesses at all as to any intoxication during this period.
Emphasis has been placed on plaintiffs promise "to produce medical evidence * * * that Contardi was under the influence of intoxicating beverages after drinking (4) beers” in five hours. This so-called "medical evidence” can be presumed to be pure theory since Contardi was not examined by the police investigating the accident. No breath analysis was made. No blood was taken. No coordination test was given. Contardi was not even arrested for driving while intoxicated.
To afford consideration to plaintiffs promise to produce, the trial judge would also be forced to give such a verbal, transitory offer the status of an affidavit. It would have to be considered as part of the "pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties” to be considered at a court hearing (GCR 1963, 117.3). To stretch the rules to fit a single desired result this Court would force Michigan courts to apply the distortion here wrought to all future cases.
T. E. Brennan, J., concurred with M. S. Coleman, J.