Menzies v. Sigma Pi Alumni Ass'n of Rhode Island, 1649-A

• Citation: 294 A.2d 193,110 R.I. 488
• Decision Date: 08 August 1972
• Docket Number: No. 1649-A,1649-A
• Parties: Michael W. MENZIES v. SIGMA PI ALUMNI ASSOCIATION OF RHODE ISLAND, Inc., et al. Michael W. MENZIES v. SIGMA PI FRATERNITY, ALPHA UPSILON CHAPTER, et al. Mildred Potter MENZIES et al. v. SIGMA PI ALUMNI ASSOCIATION OF PHODE ISLAND, Inc., et al. Mildred Potter MENZIES et al. v. SIGMA PI FRATERNITY, ALPHA UPSILON CHAPTER, et al. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 193

294 A.2d 193

110 R.I. 488

Michael W. MENZIES v. SIGMA PI ALUMNI ASSOCIATION OF RHODE ISLAND, Inc., et al.

Michael W. MENZIES v. SIGMA PI FRATERNITY, ALPHA UPSILON CHAPTER, et al.

Mildred Potter MENZIES et al. v. SIGMA PI ALUMNI ASSOCIATION OF PHODE ISLAND, Inc., et al.

Mildred Potter MENZIES et al. v. SIGMA PI FRATERNITY, ALPHA UPSILON CHAPTER, et al.

No. 1649-Appeal.

Supreme Court of Rhode Island.

Aug. 8, 1972.

Howard I. Lipsey, Providence, for plaintiffs

Carroll, Kelly & Murphy, Joseph A. Kelly, Providence, for defendant Hartford Fire Insurance Co.

OPINION

JOSLIN, Justice.

These four civil actions are here on appeal. In two of them Michael W. Menzies is the plaintiff and the appellant; in the other two the plaintiffs and the appellants are Mildred Potter Menzies, Michael W. Menzies and Russell T. Potter. All of the actions include as a defendant either the Hartford Fire Insurance Company or the Hartford Accident and Indemnity Company. Our references to 'defendant' herein should be understood, therefore, as applying not always to the same party, but to the appropriate insurance company in each instance. In each case, a fair reading of the motion acted upon in the Superior Court clearly indicates that the defendantmovant intended thereby to test the legal sufficiency of the complaint; and in each, the parties have briefed and argued the case in this court as if the appeal were taken from an order dismissing the action on the ground that the complaint failed to state a claim upon which relief could be granted. A docket entry in two of the cases, however, contains the following recital:

'Motion to dismiss for failure of pleadings to state a claim upon which relief can be granted against Hartford Ins. Co. is granted and summary judgment is entered for Hartford Ins. Co. in accordance with Rule 56 RCP.'

In each of the other two cases, the comparable entry omits any reference to a summary judgment and states only that defendant's motion to dismiss was granted. Moreover, and notwithstanding the docket entries in the first two cases, the pertinent written order contained in the papers in each of the four cases states that the cause was heard on defendant's motion '* * * to dismiss the primary complaint laid against it in accordance with Rule 12(b),' and that after hearing thereon it was ordered that 'the motion to dismiss be and the same is hereby granted.'

We are, of course, aware that Super.R.Civ.P. 12(b) permitted, but did not require, the trial justice to go outside of the pleadings and to consider the depositions, answers to interrogatories, affidavits and other extraneous materials filed in one or more, but not in each, of the four cases, and then to treat the motions to dismiss under 12(b)(6) as if they were motions for summary judgments to be disposed of as provided for in Super.R.Civ.P. 56. DiBello v. St. Jean, 106 R.I. 704, 707, 262 A.2d 824, 825 (1970); Warren Education Ass'n v. Lapan, 103 R.I. 163, 168, 235 A.2d 866, 869 (1967). The difficulty here, however, is that the confused state of the record in each of the cases makes it impossible to determine (1) in which of the four...