Winters v. Indemnity Insurance Co. of N America , 8 Ohio Law. Abs. 163 ( 1930 )

RICHARDS, J;

The fact that the entire poicy is attached to the petition and marked as an exhibit, does not permit the court to examine or construe it in passing upon a demurrer to the petition.

Sobocinski vs. Beczkowski, 18 Court of Appeals Opinion, 6th District, unreported n. 181.

As we read the provisions of clause 9, set forth in the petition, the obligation of the defendant under that clause in the event of total and permanent loss of vision was to pay a sum equal to the weekly indemnity for 150 weeks. The petition avers that the defendant did pay to the plaintiff the weekly benefits provided by that clause for the period of one year, which would be 52 weeks, and that the company thereafter paid to the plaintiff in a lump sum the stipulated sum provided in the policy for a period of 98 weeks, thus making it apparent that the company has already paid to the plaintiff the payments provided for by clause 9.

If the defendant paid the stipulated amounts for 52 weeks before they were really due and payable, that certainly would not be to the disadvantage of the plaintiff, and the plaintiff having accepted the same and subsequently accepted the payment covering the remaining 98 weeks —the balance of the 150 — which the company by the provisions of clause 9 was bound to pay, the court is unable to see that he has any further claim so far as is shown by the averments of the petition.

For this reason the judgment is affirmed.

Williams and Lloyd, JJ., concur.