
    Weaver v. The State of Ohio.
    
      (Decided December 10, 1928.)
    
      Messrs. Grabbe, Johnson, Grabbe & Williams, and Mr. D. F. Anderson, for plaintiff in error.
    
      Mr. Oscar A. Hunsicher, prosecuting attorney, for defendant in error.
   Lloyd, J.

In 1913 tlie plaintiff in error, Howard L. Weaver, was a resident of Los Angeles, California, and was in the employ of the Pacific Light and Power Company, and' while thus employed, on December 22, 1913, he came in contact with an electrified wire, which resulted in serious injury to him. He was taken to and spent some time in the hospital of that company, and was attended and cared for by physicians and nurses of the company. He was most severely burned, and it was nécessary to bandage practically his entire body. Later the Legal Aid Society of that city, apparently formed for the purpose of voluntarily looking after such persons as needed legal assistance and were not financially able to obtain the same, filed in his behalf in the superior court of Los Angeles county, California, a petition, or, as it is there called, a complaint, wherein facts alleging a liability on the part of the company to Weaver were stated, and the injuries claimed to have been sustained by him were specifically described. Among the allegations therein, relating to his alleged injuries, was the following:

“Plaintiff avers that as a result of said accident and the nervous shock incident thereto, as well as the burning resulting therefrom, the optic nerves and other instrumentalities of vision or sight have been impaired or destroyed, and as a result the power of sight in one eye has been entirely lost and destroyed, and in the other eye, to wit, the right eye, the vision or power of seeing has been so greatly impaired as that this plaintiff has been deprived of the power of reading or the power of seeing accurately any objects any more than dimly, or the power of finding his way about from place to place except with the assistance of an attendant, and he avers upon information and belief that said affliction to both of his eyes is growing worse, and that plaintiff will become almost, if not totally, blind.”

This complaint was verified by him in the following language: “That he has heard read the foregoing complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated upon his information or belief, and, as to those matters, that he believes it to be true. ’ ’

This action so begun was not tried, a settlement thereof having been effected; Weaver being paid what equaled somewhere between $2,000 and $3,000. Later Mr. Weaver left Los Angeles, going to Huntington, West Virginia, from where, in 1915, he went to Akron, where he hás since resided. He engaged in several lines of work, and in June or July of 1916 became an employee of the Goodyear Tire & Rubber Company as an assistant timekeeper. He studied law, took the required examinations, and was admitted to practice. The testimony seems not to be disputed that during this time his vision was such that it was unnecessary for him to wear glasses, and that he was able to do snch reading and writing as might be necessary to do his work properly and efficiently. Some time in 1921 he was struck by a truck of the Iflages Coal & Ice Company, and on January 18,1922, filed a petition in the court of common pleas of Summit county, seeking to recover damages for the alleged negligence of that company, which, as he claimed, resulted in the loss of his eyesight. Depositions were taken in this case, wherein he testified to the effect that he had not at any time believed or had reason to believe, or had known or had reason to know, or noticed or observed, or had reason to observe, that his eyes, or either of them, or his sight and vision had in any way been injured or destroyed as a result of the accident occurring in California, while he was in the employ of the Pacific Light & Power Company. Thereafter, on August 2, 1927, an indictment was returned by the grand jury of Summit county, the substance of which is that, because of the testimony above mentioned, he- had unlawfully committed willful and corrupt perjury. Thereafter he was tried in the court of common pleas of Summit county on this charge, the jury returning a verdict of guilty. Thereupon the court, as provided by statute, suspended the imposition of the sentence, ordering that Weaver be placed on probation for a period of four years. By these proceedings in error the plaintiff in error seeks to reverse this verdict and judgment, first, because of error of the trial court in overruling a plea in abatement to the indictment of plaintiff in error; second, because of misconduct of the court; and, third, in admitting evidence offered by the state over the objection of the defendant.

From an examination of the record we are of the opinion that the first two specifications of error are not well taken. If the trial judge was guilty of any misconduct during the trial, it does not appear in the record thereof presented to us for' review.

The chief error of which plaintiff in error complains is that the trial judge permitted the state to introduce in evidence the complaint filed in the action commenced by Weaver in Los Angeles county, California, it being claimed that Section 11359 of the General Code prohibits the use as evidence of this pleading for any purpose. Section 11359 provides:

“A pleading verified as herein required, shall not be used against a party in a criminal prosecution, or action or proceedings for a penalty or forfeiture, as proof of a fact admitted or alleged in such pleading. Such verification shall not make other or greater proof necessary on the side of the adverse party.”

This statute creates a rule of evidence, and in our judgment is applicable to pleadings filed in actions in other jurisdictions and offered in evidence on the trial of’an action in a court in this state, although we have seriously considered the question whether this section of the Code refers to and includes pleadings filed in an action in a state other than Ohio.

A general exception was taken to the admission in evidence of this complaint, and the court was not requested to in any way restrict or limit the purposes for which it was offered, and, therefore, if it was admissible for any purpose, the court did not commit prejudicial error, although we are of the opinion that the trial judge might very properly have advised the jury of the purposes for which it was received in evidence, and counsel might properly have requested him so to do. If this had been done» and the trial judge had refused to comply therewith, we believe that prejudicial error would have resulted.

This complaint could not be received as evidence to prove the allegations of the complaint, nor to disprove the truth of the testimony given by plaintiff in error in his deposition taken in the case pending in Summit county. What the facts were as to the condition of his eyes, whether as stated by him in this complaint or as testified to by him in the deposition taken in Akron, had to be proven by other evidence, and depositions of witnesses residing in California were taken to show the condition of his eyes following the accident occurring in that state.

In our judgment, the complaint was admissible to show what the plaintiff in error claimed the facts were as to the condition of his eyes following the accident in Los Angeles, as tending to show, if the facts as so claimed by him were proven by competent evidence, his knowledge thereof at the time of giving his testimony in the deposition in the Akron case, upon which the indictment was founded, and his intent in so testifying. Lappley v. State, 170 Wis., 356, 359, 174 N. W., 913, 7 A. L. R., 1279, 1282.

Finding none of the alleged errors prejudicial to the plaintiff in error, the judgment is affirmed.

Judgment affirmed.

Richards and Williams, JJ., concur.

Judges Richards, Williams and Lloyd, of the Sixth Appellate District, sitting in place of Judges Washburn, Funk and Pardee, of the Ninth Appellate District.  