
    Aetna Life Ins. Co. v. Keyser.
    (Decided May 22, 1934.)
    
      Messrs. Frost & Jacobs and Mr. G. J. Petshold, for plaintiff in error.
    
      Mr. G. W. Elliott and Mr. Maxwell Finldeman, for defendant in error.
   Hamilton, P. J.

The only question of law. stressed in this case is that the trial court erred in overruling the motion of the defendant, the Aetna Life Insurance Company, to require the plaintiff to attach to the petition a copy of the policy of insurance in question.

It is claimed that Section 11333, General Code, requires that such an instrument be attached to the petition. The section is:

“When the action, counter-claim, or set-off is founded on an account or on a written instrument as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading. If not so attached and filed, the reason for the omission must be stated in the pleading.”

In this case a copy of the policy of life insurance was not attached to the petition, but the petition proceeded to state the substance upon which plaintiff claimed to be entitled to recover thereunder.

Furthermore, it has been decided that a policy of insurance does not fall within the provisions of Section 11333, General Code.

In the case of Byers v. Farmers’ Ins. Co., 35 Ohio St., 606, 35 Am. Rep., 623, a copy of the policy of insurance was attached to the petition, and it was there claimed that this was error. The Supreme Court held that there being no objection to the attaching of the policy to the petition, it was not error to proceed with the trial of the case, treating the policy as a part of the petition. The converse of this proposition would be that had timely objection been made the policy would have been stricken from the petition.

Also, in the case of State, for use of Clark County, v. Collins, 82 Ohio St., 240, 92 N. E., 439, this question was before the Supreme Court. The first paragraph of the syllabus in that case reads:

“Sections 5085 and 5086, Revised Statutes, [Sections 11333 and 11334, General Code], authorize a pleader to attach copies of accounts or of such instruments only as are evidence of indebtedness existing at tbe time of tbeir execution, or are instruments for tbe unconditional payment of money only.”

This concerned the question of tbe attaching of an official bond to tbe petition. Tbe court stated in tbe opinion:

“Not only is this mode of pleading instruments of this character unauthorized, but it is forbidden by tbe familiar rules that a petition should contain ‘a statement of tbe facts constituting tbe cause of action, in ordinary and concise language’, and that evidence should not be pleaded. These instruments, not being for tbe unconditional payment of money, nor evidence of indebtedness existing at the time of tbeir execution, are not within tbe provisions of Sections 5085 or 5086, Revised Statutes [Sections 11333 and 11334, General Code].”

There have been many decisions in tbe trial courts to tbe effect that a policy of insurance is not such an instrument as is contemplated by Section 11333, General Code.

Our conclusion is that tbe policy of insurance was not within tbe requirements of Section 11333, General Code, and that tbe omission to attach a copy to tbe petition was not error.

Finding no prejudicial error in tbe record, tbe judgment of tbe Court of Common Pleas is affirmed.

Judgment affirmed.

Ross, J., concurs.  