
    OINAS v. AETNA CASUALTY & SURETY COMPANY.
    1. Judgment — Summary Judgment — Insurance — Uninsured Motorists Coverage — Exclusions — Applicability — Question of Pact.
    Summary judgment of dismissal of plaintiff's claim against defendant insurance company under uninsured motorists provision of automobile insurance policy on grounds of the applicability of exclusionary provisions in contract held, improper where motion to dismiss alleged no faets to support it and plaintiff's complaint alleged that defendant insurer had breached insurance contract, thus giving rise to factual question of waiver of exelusionary provisions (GCR 1963, 117).
    2. Same — Summary Judgment — Release.
    Summary judgment of dismissal of plaintiff's claim on grounds of release held, improper where release was given to someone other than defendant, and the lower court record, containing only release itself, is unclear as to whether there existed a relationship between that third party and defendants whieh would render a release of him a release of the defendants as well (GCR 1963, 117).
    References for Points in Headnotes
    [1, 2] 41 Am Jur, Pleading § 340 et seq.
    
    Appeal from Houghton, Condon (Stephen D.), J.
    Submitted Division 3 October 1, 1968, at Marquette.
    (Docket No. 3,309.)
    Decided October 22, 1968.
    Complaint by Lawrence J. Oinas against Aetna Casualty and Surety Company, a foreign corporation, and Norman McLean for personal injuries sustained in an automobile collision. Summary judgment for defendants. Plaintiff appeals.
    Reversed and remanded.
    
      Wisti, J aaskelainen & Schroch, for plaintiff.
    
      Humphrey (& Weis, for defendants.
   McG-regor, J.

Plaintiff’s complaint alleges that he was “a paying passenger” in an automobile owned by defendant McLean (Count IV), or a joint venturer with the driver, Mr. McLean’s son (Count V), when injured in a collision with a car owned by Reino Maid. Counts IV and V seek $50,000 damages for personal injuries allegedly caused by the negligence of the driver of the McLean car. In Counts I, II, and III plaintiff seeks $10,000 from the insurer of the McLean car under uninsured motorist provisions, claiming Mr. Maki was uninsured and also at fault.

Defendants filed a motion to dismiss because “the complaint does not state a cause of action” and because “plaintiff has released his claims and cause of action against these defendants”. Other reasons were abandoned. This motion was granted by the circuit judge, although no facts were alleged to support it, in any affidavit or otherwise, except two exhibits, namely, the policy of insurance and a general and broadly worded release given by plaintiff for $1625 to a “William Gfregorich d/b/a Gregorich Bar.”

While it appears that the conclusions of the circuit judge are probably correct, we are unable to sustain his order on thé record before us. The complaint alleges full compliance with the insurance contract and that it was breached by defendants, therefore conduct similar to the facts of Bielski v. Wolverine Insurance Company (1967), 379 Mich 280, may have occurred. The record says nothing about the release, except its own language. We suspect that Mr. Gregorich settled because of potential dram shop act liability, but on this record, he might have been a joint tortfeasor instead. See CLS 1961, § 600.2925 (Stat Ann 1962 Rev § 27 A.2925).

The “order granting motion to dismiss” is set aside and the cause is remanded for further proceedings or trial.

T. G. Kavanagh, P. J., and Philip C. Elliott, J., concurred.  