
    BURNS v COWAN’S FRIENDLY SERVICE
    Judgment — Summary Judgment — Grounds.
    A summary judgment granted after proceedings as if the motion had been made on the ground that there is no genuine issue as to any material fact is error where the motion was in fact made on the ground that the complaint failed to state a claim upon which relief can be granted (GCR 1963,117.2).
    Reference for Points in Headnote
    No reference.
    Appeal from Wayne, Joseph A. Moynihan, J.
    Submitted Division 1 January 5, 1973, at Detroit.
    (Docket No. 13814.)
    Decided February 26, 1973.
    Complaint by Barry K. Burns against Cowan’s Friendly Service, Mobil Oil Corporation, and Uniroyal, Inc., for damages for personal injuries sustained in a tire explosion. Summary judgment for defendant Mobil Oil Corporation. Plaintiff appeals.
    Reversed and remanded.
    
      Lopatin, Miller, Bindes, Tanielian & Freeman (by Michael H Feiler), for plaintiff.
    
      Alexander, Buchanan & Seavitt (by John N. Highland), for defendant.
    Before: V. J. Brennan, P. J., and T. M. Burns and Adams,  JJ.
    
      
       Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
    
   Per Curiam.

Defendant Mobil Oil Corporation sought summary judgment pursuant to GCR 1963, 117.2(1). From the record, it is obvious that the parties and the court proceeded as though the motion had been brought under GCR 1963, 117.2(3). The trial court’s grant of defendant’s motion must be reversed pursuant to Fecteau v Wolco Homes, Inc, 385 Mich 763 (1971), reversing 32 Mich App 21 (1971).

Reversed and remanded.  