Black, J.
Like the three Durant Cases1 this is another tort action where summary action below [484]*484lias divided the Court — hopelessly and inconclusively. Again the rock that trisects the stream of judgment is that importation from the Federal system known as accelerated or summary judgment, found in OCR 1963, 116, 117. The supporters of quick and easy riddance of politically troublesome cases will not even recognize' — in fact have steadily ignored since Rules 116 and 117 became effective— what seem to be the supremely controlling pilot-directors of the aforesaid importation, referring specifically to Sonnentheil v. Christian Moerlein Brewing Company, 172 US 401 (19 S Ct 233, 43 L ed 492); Sartor v. Arkansas Natural Gas Corporation, 321 US 620 (64 S Ct 724, 88 L ed 967); Poller v. Columbia Broadcasting System, Inc., 368 US 464 (82 S Ct 486, 7 L ed 2d 458); and United States v. Diebold, Inc., 369 US 654 (82 S Ct 993, 8 L ed 2d 176), all having been relied upon in the prevailing opinion of the first Durant Case (374 Mich at 88-91), wherein summary judgment was denied. Meanwhile others acknowledging that the four cited Federal decisions do exist, were unwilling to apply them to the second and third Durant Cases (see Souris, J., 375 Mich at 647-650 and at 666). The curious result was that misfortunate defendants King, Bashara, Merrell and Waldron were held for trial on denial of summary judgment (374 Mich 82) while the more favored defendants McKeehan (374 Mich 93), Van Dusen, Elliott, Romney (375 Mich 628) and Brucker (375 Mich 665) were let out on grant of summary judgment.
All this took place in the same action with all defendants correspondingly charged with a libel of the plaintiff or actionable participation in such libel.2 It must be that Rules 116 and 117, wrought [485]*485supposedly by and upon the Court’s own hammer and anvil, are mighty abstruse when not even 5 Justices can agree upon any dependable guide for application of those rules to actions for tort that are based upon the common law and depend upon testimonial proof and the legal sufficiency of such proof.
Had Professor Rodell been seated here for judg-. ment as the 3 Durant Cases came up, I am sure he would have hatched a cyclic new killy-loo for application of Rules 116 and 117, a legal bird with left- and right wings arranged reversibly so that all flight might go round and about rather than just backward. The reference appears in Williams v. City of Detroit, 364 Mich 231, 276, 277. To quote Rodell again:
“ ‘The law is the killy-loo bird of the sciences. The killy-loo, of course, was the bird that insisted on flying backward because it didn’t care where it was going but was mightily interested in where it had been. And certainly The Law, when it moves at all, does so by flapping clumsily and uncertainly along, with its eye unswervingly glued on what lies behind.’ Rodell, ‘Woe Unto You, Lawyers!’, ch 2, [486]*486p 23, Reynal & Hitchcock, p 20, Pageant Press, Inc., New York City.”
Since submission of this appeal, seven of us have seen and heard the telecast “A Bell for Okinawa.”3 Contrary to probative opinion reached upon reading the cold print of appendix and briefs, that audiovisual review has brought the writer to definite agreement with defense counsel that the telecast discloses no actionable defamation of plaintiff and that Nuyen v. Slater, 372 Mich 654, affirming grant of summary judgment, controls that point as a matter of law. Like the letter written by Mrs. Slater to the State health department, nothing conveyed to eye and ear by the film “defamed plaintiff within the commonly accepted meaning of the word. See 3 Restatement, Torts § 559.” (Souris, J., writing for the majority in Nuyen, p 662).
So much, then, for plaintiff’s claim that he is possessed of a cause for defamation. But another question, not answerable by demonstrative or documentary proof alone, remains for due process test of defendant’s motion for summary judgment. Such question depends for answer upon that which may indeed be proved but yet is not; referring specifically to defendant’s key defense which, under heading “affirmative defenses,” is designated in its answer as paragraph (7). Paragraph 7 reads:
“(7) Plaintiff, while in Germany, acted to preempt the limelight as a public figure, or a celebrity, or a public personage, and, consequently, he lost his right to privacy, since: (i) he himself sought publicity and consented to it, and so he cannot now complain of such publicity; (ii) his personality and affairs already had become public, and these can [487]*487no longer be regarded as Ms own private business; and, (iii) television, in common with the press, has a privilege, guaranteed by the United States and Michigan Constitutions, to inform the public about those who have become legitimate matters of public interest”.4
One need but add that the affirmative defense thus pleaded may — if supported by due proof — turn out to be airtight as a matter of law. On that score see the respective opinions of Curtis Publishing Company v. Butts (Associated Press v. Walker), 388 US 130 (87 S Ct 1975, 18 L ed 2d 1094), so far as such opinions deal with Ceneral Walker’s fully tried case. But the validity of that defense may be rightfully tested only at close of all proofs, and then by motion for an instructed negative verdict as done in both Butts and Walker. As yet it has not received that exact proof-bolster which ever must precede determination of a cause by judicial judgment distinguished from jury verdict.
Upon the procedurally restricted showing now before the Court I hold that plaintiff’s cause as pleaded cannot be tested for legal sufficiency until, in the course of a due and complete trial, both parties have submitted proof for and against the proposition that the defendant telecaster actionably invaded Ms “right to be let alone” by repeating the telecast after having received from plaintiff the latter’s cease and desist letter of May 7, 1958. In such regard we find that plaintiff has alleged in his declaration, and defendant has not denied, that:
“13. Plaintiff immediately, through attorneys, caused a letter to be sent to the defendant requesting that defendant cease and desist from further [488]*488distribution and telecast of said film and advising the defendant that said film was false and defamatory and an invasion .of his right of privacy.
“14. Notwithstanding receipt by defendant of this letter the defendant did again, recklessly and without the knowledge or consent of plaintiff, telecast said film on or about September 2, 1958.”
Thus' far we are referred to nothing, nothing of record at all, which might tend to explain or justify defendant’s going on with the second telecast or, possibly, tend to show an “adequate” investigation, after receipt - of the cease and desist letter, upon strength of which defendant may have become immune legally from plaintiff’s charge of actionable invasion. There may indeed be such an explanation or justification. Defendant may have investigated to such extent as would satisfy the requirements of acceptable publishing standards. But that we do not yet know and will not know until defendant undertakes its quoted defense, a defense which would seem to require exemptive proof, not allegation, that defendant in proceeding with the second telecast did not depart from such standards. To quote that part of the Court’s opinion which, in Curtis Publishing Co. v. Butts, pp 158, 159, concluded the Walker Case:
“In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination. The Associated Press received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and competent. His dispatches in this instance, with one minor exception, were internally consistent and would not have seemed unreasonable to one familiar with General Walker’s prior publicized statements on1 the underlying controversy. Considering the necessity for rapid dissemination, nothing in this [489]*489series of events gives the slightest hint of a severe departure from accepted publishing standards. We,¡ therefore conclude that General Walker should not be entitled to damages from the Associated Press.”
With plaintiff’s claim of defamation out of this case as a matter of law, the briefed question of privilege — qualified or unqualified — takes on a not. yet fully explored aspect of legal substance. Neither of the courts below has considered the question of privilege excepting as it applies in the context of plaintiff’s said allegation of defamation. Hence the controlling question on present appeal is whether, as against defendant’s motion for summary judgment,5 plaintiff is entitled to that kind of a trial our own Constitution supposedly assures,6 before the trial judge may hear and determine any motion for entry of a negative judgment. I stand for such a trial and therefore vote to reverse this latest order granting summary judgment, the finally assigned, merit of which is that there is no “genuine” issue of fact. As for that adjective “genuine”, see dissenting comment in Coronet Development Company v. F. S. W., Inc., 379 Mich 302, 314, 315.
The trial judge filed two opinions. Each upheld defendant’s said motion. In his first opinion the [490]*490judge declared his view of the decisive question of law this way:
“Here the defendant, Evening News Association, has moved for a summary judgment for a myriad of reasons which may he reduced, however, to one simple statement as follows: They move for the summary judgment because they state the defendant, as a visual broadcaster, is exempt from liability for defamation by reason of a qualified privilege absent malice.”
On motion for reconsideration the trial judge found that the film televised by defendant “is not defamatory as a matter of law of any of the characters it depicts.” Agreeing that that was and is true, there was and now is no question of privilege for judicial consideration excepting as that question may apply to plaintiff’s claim that his right of privacy was actionably invaded. The issue then became whether, both in circuit and upon submission to the seated panel of the Court of Appeals, plaintiff’s cause was determinable properly “on the pleadings as augmented by the exhibit of the published article and the film itself.” The quotation is taken from the concluding paragraph of the trial judge’s opinion on motion for reconsideration. The full paragraph reads:
“This court, in finding that defendant was qualifiedly privileged in televising the film, also finds as a matter of law that the film and its published prototype were in substantial and material agreement, considering* what we must recognize as limitations of photography in depicting the written word, and without allegation of express malice in such televising, defendant Evening News Association, as the television station disseminating the film, is entitled to summary judgment of no cause of action on the pleadings as augmented by the exhibit of the published article and the film itself,”
[491]*491Plaintiff’s canse arose, if at all, in 1958. It was tried to the point of mistrial in June of 1963. At and prior to the time of mistrial the law of privacy was fitful if not downright enigmatic. One judge, with manifest justification back in 1956, likened it to a “haystack in a hurricane” (Ettore v. Philco Television Broadcasting Corporation [CA 3], 229 F2d 481 [58 ALR2d 626]).7 But that dubious situation in our jurisprudence was as nothing, now that 1967 and Time v. Hill, 385 US 374 (87 S Ct 534, 17 L ed 2d 456) have arrived. Time v. Hill suggests imperatively that the intrusion of constitutional questions into the action for invasion of privacy requires of the courts of the States that they develop their precedents of substance only when the facts, the all important facts, are completely and testimonially assembled before the trial judge and trial jury (where as here one of the parties has preserved his right of trial by jury).
One need but read, thoughtfully, “Privacy: The Right to be Let Alone,” by Ernst and Schwartz, The Macmillan Company, 1962; the complete symposium “Privacy” appearing in the Spring 1966 issue of Duke University’s Law and Contemporary Problems (No. 2); Professor Bloustein’s “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (September 1966 issue of Publishing Entertainment Advertising Law Quarterly, p 166); Mr. Silver’s “Privacy and the First Amendment”, written for the May 1966 issue of Fordham Law Review, No. 4, p 553; Mr. Goldstein’s “The Constitutional Rights of Privacy — ‘A Sizable Hunk of Liberty’ ”, written for the Summer 1966 issue of [492]*492Maryland Law Review, p 249; and Mr. Rodgers’ “A New Era for Privacy”, written for the Winter 1967 issue of North Dakota Law Review, p 253, to conclude that judicial consideration of most if not all of the legal and constitutional questions arising from an asserted cause for invasion of privacy should not be undertaken until all of the circumstances of such asserted cause have been marshaled and presented in the course of trial.
Let us examine Time v. Hill for verification of this, after having considered the prescient first paragraph of Mr. Silver’s mentioned article:
“In New York Times Co. v. Sullivan, the United States Supreme Court held that State tort law and its judicial enforcement is ‘State action’ within the Fourteenth Amendment. Thus, where such law unduly interferes with freedom of speech or press under the First Amendment, it cannot be enforced.
“Although the Times Case arose out of a libel suit, there can be no doubt that any tort or other action cognizable in State courts will be subject to future constitutional test. The next tort action to undergo constitutional scrutiny will undoubtedly be that of invasion of privacy. Indeed, the Supreme Court has recently accepted a privacy case arising out of a judgment awarded to an individual publicized in Life magazine. As the Court stands poised at the brink of entry into yet another State domain, it would be propitious to clearly understand the problems posed by the present law of privacy and the possible resolutions to these problems.”8
Three features of Time v. Hill stand forth as of today’s stage of that yet unsettled case.
[493]*493The first and most important is that the case was tried to jury verdict and entry of judgment; that the verdict as to liability was sustained below and reversed by the Supreme Court, and that reversal was not for entry of judgment in favor of the defendant but for retrial, the Court having found (385 US at 391):
“Turning to the facts of the present case, the proofs reasonably would support either a jury finding of innocent or merely negligent misstatement by Life, or a finding that Life portrayed the play as a re-enactment of the Hill family’s experience reckless of the truth or with actual knowledge that the portrayal was false.”
The next is that two members of the Court found it necessary to join three other members provisionally “in order for the Court to be able at this time to agree on an opinion in this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 US 254.”9 (Quotation from Mr. Justice Black’s separate opinion, p 398.)
The last, drawn from the first two, is that the Court simply could not have approached the writing of any opinion or opinions of substance for the case on strength of summary judgment procedures. Ear from being a precedent for summary disposition of an action for invasion of privacy, Time v. Hill stands as a unanimous determination that Hill’s cause as alleged and tried should be retried, reversible error having been discovered in the trial judge’s charge to the jury.
Now for the case at bar: Without the record of a completed trial, how may this Court decide as a matter of law that the defendant enjoyed some [494]*494legal privilege to deliver the second telecast? How may the Court determine, again as a matter of law, that the circumstances of the second telecast did or did not give rise to a cause for invasion of privacy, a cause that may not have existed prior to the time of that telecast? For answer consider what is before the Court at present writing.
Three opinions of this case have been submitted for signature. One, prepared by Justice Brennan, stands for affirmance. Another, prepared by Justice Souris, stands for reversal on ground that the question of defamation only is a triable issue of fact, it being his view that plaintiff has failed to plead a cause for invasion of privacy. I am unable to sign either opinion; hence this separate contribution.
1. The Brennan Opinion.
This opinion goes so far as to make up a finding of facts on the unique if not virginal assumption that the Court is armed with authority not only to try Mr. Weeren’s case on merit but to determine it upon findings of fact and conclusions of law as in GCR 1963, 517 provided. These findings enter our record under the unabashed declaration that “we must now tell the story of Franz J. Weeren against the Evening News Association as it can be gleaned from the words of Mr. Weeren himself and the uncontroverted exhibits, documents and pleadings in the cause.” Then comes “the story,” told with factual selections about as unfavorable to the plaintiff’s cause as one reasonably might expect in the course of a defensive jury argument, even unto histrionic demand for outright discard of plaintiff’s cease and desist letter of May 7, 1958, as having fallen “short of the mark” (the “mark” not being identified either by citation or proof).
[495]*495Marked definitely by the advent of United States v. Diebold, Inc., 369 US 654 (82 S Ct 993, 8 L ed 2d 176),10 the instant duty of this Court would seem to be the other way around, no court as yet — circuit, appellate, or Supreme — having been authorized to test more than defendant’s motion for summary judgment. Diebold says, at 655:
“On summary judgment the inferences to be drawn from the underlying facts contained in such materials [“affidavits, attached exhibits, and depositions submitted below”] must be viewed in the light most favorable to the party opposing the motion. A study of the record in this light leads us to believe that inferences contrary to those drawn by the trial court might be permissible. The materials before the district court having thus raised a genuine issue as to ultimate facts material to the rule of International Shoe Company v. Federal Trade Commission [280 US 291 (50 S Ct 89, 74 L ed 431)], it was improper for the district court to decide the applicability of the rule on a motion for summary judgment. Fed Rules Civ Proc, 56(c).”
To the credit of both, neither the trial judge nor the panel below undertook any such findings of fact or imfavorable-to-plaintiff forensics. For the trial judge’s restriction of decision to the question of privilege, determinable solely “on the pleadings as augmented by the exhibit of the published article and the film itself,” see the concluding paragraph of his second and final opinion, quoted ante. As for the appellate panel, the judges there disposed of plaintiff’s appeal strictly on strength “of the pleadings, film and article on which .the film was based” and proceeded to hold that defendant’s do[496]*496ings were privileged as a matter of law, “that there was no showing of material falsity or malice,” and that there could be no claim “of excessive publication.” (2 Mich App at 77.) No resort to the incomplete record of testimony was attempted, the panel understanding properly that there was presented before it the validity of a motion for summary judgment only; certainly no duty to weigh incomplete proof, find facts, and determine the merits of the pleaded cause and the pleaded affirmative defenses.
2. The Souris Opinion.
Justice Souris, looking upon plaintiff’s complaint as failing to allege a cause for invasion of privacy, alleges that “at this late date” the Court should not “treat it as if it were a two-count complaint alleging causes of action for defamation and also for invasion of privacy.” I reply that there is no need for consideration of such treatment, the complaint being amply sufficient under our rules of “notice pleading.” Indeed, as early as the time for answer the defendant knew that it was called upon for response to a combined complaint for defamation and invasion of privacy, both theories of recovery having arisen from the same set of facts as pleaded. Witness paragraph (7) of its answer, quoted above, pleading specially defendant’s reasons for defending against the second theory on ground that plaintiff had “lost his right to privacy.” Consider next the applicable rule as related in McDonald v. Hall, 193 Mich 50, 53, 54:
“When a single and continuous purpose runs through an entire transaction made up of various acts, each of which might alone constitute a cause of action, it is proper to set out all the facts in one count as a single cause of action. 31 Cyc, p 119, and cases cited in note.”
[497]*497So far as concerns Justice Souris’ criticism that the complaint is not in two-count form, he is the first to raise that point. The date for insisting on such hyperelegant pleading really is too late. See Douglas v. Marsh, 141 Mich 209, 213, 214, reading:
“It will be noted that the objection made was not that there was any technical failure to aver sufficient facts to establish a liability on the part of the defendant as owner, but the distinct point ruled was that the declaration, being in the alternative, was too uncertain in its statement to sustain a verdict. It is the settled rule that duplicity in a count cannot be made the subject of objection at the trial, but should be made the subject of special demurrer. 7 Encyclopedia Pleading & Practice pp 243, 244. See, also, Fuller v. City of Jackson, 82 Mich 480. It would have been better pleading to set out the two possible theories in separate counts; but unless the one averment negatives the other, the objection of duplicity was not good” ;
and this concurring passage of Kruk v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 249 Mich 685, 689:
“The cause of action for negligence undoubtedly was inconsistent with the charge under the hazardous employment act. The former was based upon the relation of master and servant, and the latter on the theory that the relation did not exist. Circuit Court Rule No 21, §7 [1919], permits .the joining of inconsistent causes of action in a declaration, but requires that they be charged in separate counts. The second count violated this rule. The defect, however, was in form, not in substance. It should have been challenged by motion in the nature of special demurrer, and was waived by pleading the general issue. Douglas v. Marsh, 141 Mich 209; 31 Cyc, pp 277, 278, 719.”
[498]*498SUMMARY
First: There is no precedent for the adjective posture of this case as some of the Brethren view it. Considering the process that is due, nothing beyond a judgment of remand with instructions is in order. It is a fact that, prior to trial, no one regarded the case as one for summary judgment on defendant’s motion, or as one due other than for trial of the fact and law issues of defamation and invasion of privacy. The unamended pretrial statement subscribed by Judge Wise records, under “Plaintiff’s version”:
“This is the case of the Bell for Okinawa. It is a libel and slander, invasion of privacy action by television.”
Under “Defendant’s version” defendant set forth its “summarized defenses,” suggesting nowhere that plaintiff had not pleaded a combined cause as thus averred by plaintiff. Then, under “Issues,” Judge Wise inserted the words “issues of fact and law.”
Under and in accordance with these auspices of pleading and pretrial procedure the trial went on some 7 days to the point of declared mistrial. Resort to GrCR 1963, 117 was not attempted until after the trial had proceeded to such point. Then the only affidavit offered in support of summary judgment was that of defendant’s counsel. It contained no facts such as would be admissible in evidence to establish the grounds stated in the motion. That seems to be pretty much conceded. Nonetheless, and despite the fact that both courts below were careful not to depend upon the incomplete testimonial record to bolster either the motion or the respective opinions of such courts, some here would have the court extend summary judgment practice so that one failing to move under the rule [499]*499until the cause has been partly tried may then move for summary judgment on whole or partial strength of such incomplete trial and obtain, at that stage, the equivalent of an instructed negative verdict and consequent negative judgment.
This is not all. Until the record below arrived in this Court, defense counsel refused to recognize any part of the transcript of the trial as rightfully supporting his motion for summary judgment. To quote from defendant’s brief as submitted to the Court of Appeals:
“Counsel for appellant has printed what he deems to be favorable excerpts from the transcript of a lengthy trial under the optional provision of appellate rules, GrCR 1963, 800.12(1), which permits him, in a case originally filed in the Supreme Court, to use either an appendix or transcript.
“The trial evidence, however, is not a proper part of this appeal, since Judge Canham, in giving his opinion on reconsideration of the motion, specifically stated that he had ‘considered pleadings on file in this Court with attached exhibits and two viewings of the film.’ ”
It may be that the writer has gone into too much detail here; detail purposed toward full exposure of what the record discloses is total unemployability at present of Rule 117. But that has been deemed necessary, the better to guard against the possibility of impression that this Court is getting ready to sanction resort to part of the record of a mistried jury trial for support of a motion under Rule 117 for entry of a negative judgment.
Second: It is no secret now, the three Durant Cases considered (374 Mich 82; 375 Mich 628; 375 Mich 665), that the profession and bench of Michigan are groping for some, any, degree of certainty for ascertainment of the circumstances under which [500]*500motions- for summary judgment in tort actions are grantable properly. The uncritical reliance in some of the Durant opinions, upon that qualifying adjective “genuine” (see GCR 1963, 117.3), has left too many lawyers with erroneous impression that the trial judge presiding is under duty — and therefore possessed of right — to determine whether any presented and possibly controlling issue of fact is creditable, veritable, legitimate or, indeed believable by any jury the court might select. True, the judge may believe nothing set forth in an affidavit or deposition offered for or against summary judgment; he may even convince himself that the affiant is either lying or mistaken. He is nevertheless possessed of no authority to enter precipitate judgment upon strength of such conviction or to adjudicate that a possibly controlling issue of fact made by affidavit or deposition is not “genuine.” He sits in the same position as on motion for an instructed verdict. If there is an issue of fact, “genuine” or not, to him, the motion must be denied. The issue of fact and its attendant, the credibility of witnesses, remains for the appointed trier or triers of fact. That was made clear in the first Durant Case, 374 Mich at 89, 90 (citing the Sartor and Sonnentheil Cases) and later by Justice Souris in the second Durant Case, 375 Mich at 651, 652 (citing the same cases).
Third: Probably the decision cited oftenest thus far in privacy cases is Pavesich v. New England Life Insurance Co., 122 Ga 190 (50 SE 68, 69 ALR 101, 2 Ann Cas 561, 106 Am St Rep 104). As other writers in this field have done, 13 the opinion [501]*501of the court properly credits our Justice Cooley with having originally declared that the specific essence of the right of privacy is “the right of the individual to be let alone.” For the convenience of those who may wish to pursue the subject in general, these seemingly dependable quotations from Pavesich are appended:
“The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law1, is also embraced within the right of personal liberty. Publicity in one instance, and privacy in the other, are each guaranteed. If personal liberty embraces the right of publicity, it no less embraces the correlative right of privacy, and this is no new idea in Georgia law. In Wallace v. Georgia C. & N. R. Co., 94 Ga 732 (22 SE 579), it was said: ‘Liberty of speech and of writing is secured by the constitution, and incident .thereto is the correlative liberty of silence, not less important nor less sacred.’ The right of privacy within certain limits is a right derived from natural law, recognized by the principles of municipal law, and guaranteed to persons in this State both by the Constitutions of the United States and of the State of Georgia, in those pror visions which declare that no person shall be deprived of liberty except by due process of law.” (122 Ga 196, 197 [50 SE 70, 71].)
“The right of privacy, however, like every other right that rests in the individual, may be waived by him, or by any one authorized by him, or by any one whom the law empowers to act in his behalf, provided the effect of his waiver will not be such as to bring before the public those matters of' a purely private nature which express law or public [502]*502policy demands shall he kept private. This waiver may be either express or implied, but the existence of the waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. It may be waived for one purpose, and still asserted for another; it may be waived in behalf of one class, and retained as against another class; it may be waived as to one individual, and retained as against all other persons.” (122 Ga 199 [50 SE 72].)14
Let me repeat, from the above, that “Liberty of speech and of writing is secured by the Constitution, and incident thereto is the correlative liberty of silence, not less important nor less sacred.” Now that liberty of speech and press have been thrust nationally into the right of action for defamation if not directly into the right of action for invasion of privacy (but see Warren Spahn’s Case, supra), it is a blind appellate court that cannot foresee injection into cases as at bar of that correlative right to be let alone which, in Pavesich, came to consideration and approval. This of course implies no present decision or conviction either way. It does say, right out, that all such questions should be considered by appellate courts only in the light of fully tried — not summarily truncated — actions for damages. It says also that if fully tried cases like Time v. Hill, Messner v. Spahn and Curtis Publishing Co. v. Butts were too sticky and inconclusive for entry of final judgment, this summarily judged case is too much so for present entry of such a judgment.
[503]*503Needless to say, the views set forth in this opinion are expressed solely within the procednrally circumscribed context of defendant’s summary motion and of our inquiry into the validity of that motion. No “logical extensions” thereof are permitted. See Larzelere v. Starkweather, 38 Mich 96, 101, McNally v. Board of Canvassers of Wayne County, 316 Mich 551, 558, and quotation of Chief Justice Marshall in Humphrey’s Executor (Rathbun) v. United States, 295 US 602, 627 (55 S Ct 869, 79 L ed 1611). The quotation was taken from Cohens v. Virginia, 19 US (6 Wheat) 264, 399 (5 L ed 257).
As noted above, my vote is cast to reverse and for remand to circuit for entry of order denying this motion for summary judgment. All costs should abide the final result.
Supplement (September 25, 1967):
liefer to page 494 above, noting the then fact of submission of three opinions of this case, each variant from both of the others. There are four opinions now, Justice Adams having contributed September 21st a third view for reversal.
Looking at these circumstances of judicial paralysis, it is not out of order to observe that the profession as well as the case would be served better by scrapping all four opinions followed by entry of an order vacating both judgments below for reason that the record is not presently in shape for entry of any kind of peremptory judgment.