Jackson v. National Gas & Oil Co.

Per Curiam. The first issue we address is the propriety of the order dismissing Dwight Wince. Contrary to the assertions of appellants, this dismissal was not based on the doctrine of sovereign immunity. In fact, R.C. 5571.10 specifically provided that: “Each board of township trustees shall be liable, in its official capacity, for damages received by any person, firm, or corporation, by reason of the negligence or carelessness of such board in the discharge of its official duties.” Wince was properly dismissed because his alleged negligent activities were for actions in his official capacity, while appellants brought this action against him individually. The second issue is whether a report of an expert is admissible against the party who commissioned the report as an exception to the hearsay rule. Appellants maintain that the admission of the S.E.A. reports is inadmissible as hearsay, contrary to the decision of the court of appeals below which held that the reports were properly admitted. Appellees argue that Evid. R. 803(6), the business records hearsay exception, allows the admission of the S.E.A. reports. Evid. R. 803(6) provides that the following is not excluded by the hearsay rule: “Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all- as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of'preparation indicate lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” [331] The record clearly discloses that the S.E.A. reports were prepared in the ordinary course of business. Testimony by the author of one of the reports satisfied the foundational requirements for admission, and appellants have not demonstrated that the reports lacked trustworthiness. As the reports were within the business records exception, they were properly admitted. The board cross-appeals from the judgment of the court of appeals which held the trial court’s exclusion of the National Gas report and the testimony of appellants’ expert to be improper. The National Gas report came within the business records exception, and thus was not properly excludable as hearsay. The opinion of appellants’ expert was relevant to the question of whether the gas line was adequately protected. Testimony in the form of an opinion otherwise admissible is not objectionable solely because it embraces an ultimate question of fact. For the foregoing reasons, the judgment of the court of appeals is affirmed. Judgment affirmed. Celebrezze, C.J., W. Brown, Sweeney, Locher, Holmes and J. P. Celebrezze, JJ., concur. C. Brown, J., dissents.