Nagy v. Lumbermens Mut. Cas. Co.

• Decision Date: 03 June 1965
• Docket Number: No. 10716,10716
• Citation: 100 R.I. 1,210 A.2d 603
• Parties: Steven NAGY v. LUMBERMENS MUTUAL CASUALTY COMPANY. Ex.
• Court: Rhode Island Supreme Court

Page 603

210 A.2d 603

100 R.I. 1

Steven NAGY v. LUMBERMENS MUTUAL CASUALTY COMPANY.

Ex. No. 10716.

Supreme Court of Rhode Island.

June 3, 1965.

Fergus J. McOsker, Providence, for plaintiff.

Francis V. Reynolds, Leonard A. Kiernan, Jr., Providence, for defendant. JOSLIN, Justice.

This is an action of assumpsit brought by the plaintiff on an insurance policy issued by the defendant and described as a 'family automobile policy.' It is here on the plaintiff's exception to a decision of a justice of the superior court sustaining the defendant's demurrer to the plaintiff's declaration.

The declaration alleges that defendant upon payment therefor issued a policy to plaintiff which included an undertaking 'to pay $500. in medical payments for each person injured while riding in plaintiff's automobile * * *.' It is further alleged that during the term of the policy plaintiff's wife was injured while riding in his automobile and that defendant has refused to pay him the obligations he incurred for the medical treatment and care rendered her because of that injury.

The issue before us being the legal sufficiency of the declaration, we are limited in our consideration to those factual allegations which appear in the pleading tested, Dawiski v. Natick Mills, 32 R.I. 1, 78 A. 263, and we necessarily refrain from considering a document referred to but not incorporated or set forth therein. Morrissey v. Providence & Worcester R. R., 15 R.I. 271, 3 A. 10. Here neither the policy which forms the basis of the suit nor the specific provision thereof upon which plaintiff bases his claim, other than as already quoted, is included in or annexed to the declaration or otherwise appears in the pleadings.

The plaintiff, however, notwithstanding that the practice has long since, both here and elsewhere, fallen into disuse, made profert in his declaration of the policy, apparently intending thereby to obviate the necessity of including therein directly or incorporating as an exhibit either the policy itself or such clauses as might have pertinence. Profert, however, without a demand of oyer by the defendant, that is, a demand to hear the policy read, and there is no such demand here, is of no avail to plaintiff. It does not serve to make the policy a part of the record and cannot be noticed by the court. Riley v. Yost, 58 W.Va. 213, 52 S.E. 40, 1 L.R.A.,N.S., 777; Holland Land Co. v. Maryland Casualty Co., 1 Terry 298, 40 Del. 298, 10 A.2d 501; United States v. Arthur,...