Opinion
Decided May 22, 1934.
Pleading — Action on life insurance policy — Unnecessary to attach copy of policy to pleading — Section 11333, General Code.
A policy of life insurance is not such an instrument as is contemplated by Section 11333, General Code, requiring that when an action is founded upon a written instrument as evidence of indebtedness a copy thereof must be attached to and filed with the pleading.
ERROR: Court of Appeals for Butler county.
Messrs. Frost Jacobs and Mr. C.J. Petzhold, for plaintiff in error.
Mr. C.W. Elliott and Mr. Maxwell Finkleman, for defendant in error.
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 the time of their execution, or are instruments for the unconditional payment of money only."
This concerned the question of the attaching of an official bond to the petition. The court stated in the opinion:
"Not only is this mode of pleading instruments of this character unauthorized, but it is forbidden by the familiar rules that a petition should contain `a statement of the facts constituting the cause of action, in ordinary and concise language', and that evidence should not be pleaded. These instruments, not being for the unconditional payment of money, nor evidence of indebtedness existing at the time of their execution, are not within the provisions of Sections 5085 or 5086, Revised Statutes [Sections 11333 and 11334, General Code]."
There have been many decisions in the trial courts to the effect that a policy of insurance is not such an instrument as is contemplated by Section 11333, General Code.
Our conclusion is that the policy of insurance was not within the requirements of Section 11333, General Code, and that the omission to attach a copy to the petition was not error.
Finding no prejudicial error in the record, the judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
ROSS, J., concurs.