dissenting. In my opinion, the judgment of the Court of Appeals clearly requires affirmance, and, therefore, I must dissent.
The trial court erred to the substantial prejudice of plaintiff in submitting the two interrogatories to the jury, purportedly under favor of R. C. 2315.16, which section was operative when this lawsuit was tried. Such section provided :
“When either party requests it, the court shall instruct the jurors, if they render a general or special verdict, specially to find upon particular material allegations contained in the pleadings controverted by an adverse party, and submitted by the court in writing, to the jury, and shall direct the jury to return a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”
The Ohio statutory provision in effect at the time of the events with which we are concerned herein, covering the content of a petition, is clearly spelled out in R. C. 2309.04, as follows:
“The first pleading shall be the petition by the plaintiff, which must contain:
“(A) A statement of facts constituting a cause of action in ordinary and concise language;
“(B) A demand for the relief to which the plaintiff claims to be entitled. If the recovery of money is demand*261ed, the amount shall be stated; and if interest is claimed, the time for which interest is to be computed shall be stated. ’ ’
Specifically, the demand for relief or the prayer is a separate portion of the petition from the statement of facts constituting a cause of action under that statute.
Likewise, the long established case law in Ohio has been that the prayer of a pleading is not a part of the cause of action, but is a statement of what plaintiff conceives to be the legal consequences of the facts stated. Tiffin Glass Co. v. Stoehr (1896), 54 Ohio St. 157, 163, and Culver v. Rodgers (1878), 33 Ohio St. 537, 546.
It follows logically that, if the prayer does not comprise a part of the statement of facts constituting a cause of action, it is not an issue to be tried in the cause and, therefore, could not be the subject of an interrogatory to be submitted to the jury under former R. C. 2315.16.
As pointed out by the Court of Appeals, the interrogatories here are especially damaging for the reason that the trial court, disregarding a pre-trial stipulation and order, approved by attorneys for both sides, that defendant would have no exhibits, admitted in evidence an unfiled petition for damages prepared by defendant which contained a prayer for $5,000 against the officers and employees of the restaurant where plaintiff was injured. The Court of Appeals observed that the jury could have been misled to believe that the words “original claim” in the first interrogatory meant the amount of the prayer of that petition.
In addition to the stipulation and the trial court’s order thereon, this exhibit was inadmissible under any rule of evidence. Ironically, it was drafted by defendant’s decedent (defendant-appellee Norris died while the matter was pending in the Court of Appeals and his executrix has been substituted and the cause revived by agreement) but for reasons known only to himself was never filed. Thereby, due to his professional negligence, plaintiff was deprived of her day in court to air her claim against the Mazzas. The statute of limitations on that claim was one *262year, or until January 31, 1960. It is significant that this unfiled petition was notarized by Norris oñ January 30, 1960. It is likewise significant that treatment, hospitalization and surgery of plaintiff, according to the record, continued for several years after the date this petition (exhibit A) was signed and sworn to by plaintiff. Obviously, from the chronology of the facts above certain important items of damages accrued after that date.
The admission of exhibit A was prejudicially erroneous to plaintiff, Elma E. Porter.
For the foregoing reasons the judgment of the Court of Appeals should be affirmed.