Allen v. Michigan Bell Telephone Co.

Being an appellate judge and not an appellate advocate, I must dissent.. The majority opinion is based on a theory not plead*641ed by plaintiff nor raised before tbe trial court. Furthermore, the theory adopted by the majority opinion was neither briefed nor argued by plaintiff before this Court.

If this Court does not consider theories not presented to the trial court, Kirby v. Monroe Paper Products Company (1965), 1 Mich App 680, we could not properly reach the result of-the majority opinion had plaintiff briefed or argued on appeal the theory adopted by the majority opinion. When the additional…