Langdon v. Board of Liquor Control ( 1959 )

Believing that the Board of Liquor Control made improper rulings on the admissions of the opinions of the chemist, an employee of the Department of Liquor Control, I am of the opinion that there was no evidence before the Board of Liquor Control on which they could make an independent decision that the contents of the bottles placed in evidence had been diluted, refilled or partially refilled in violation of Section 4301.68 of the Revised Code, and of Regulation No. 47 of the Board of Liquor Control. Certainly the file does indicate that there was evidence which the state could have properly presented upon which the chemist could have based an opinion that the bottles were refilled, but it was not, and in giving his opinion the chemist was making a comparison between records of congeneric contents kept in the department's files with his own findings as a result of the testing of the bottles, and since his opinion was based on records not offered in evidence the objection to such an opinion should be sustained. See Cousineau v.Industrial Commission, 59 Ohio Law Abs., 142, 99 N.E.2d 323.

Nowhere in the record made before the Board of Liquor Control is there any showing as to the congeneric properties of the contents of the exhibits placed in evidence or of the brands of whiskies named on the labels of those bottles, nor is there any evidence of the congeneric properties of the brand of whiskey known as P. M. and to which the chemist testified that the contents of the bottles placed in evidence were similar. It appears that the chemist's opinion does not supplement any evidence already presented to the triers of the facts but it supplants evidence to be presented and it leaves nothing else for the board upon which they could base their decision.

In accepting the evidence of the chemist upon the precise or ultimate facts of the issue to be decided by the Board of Liquor Control, the board overlooked the general rule that a witness, either expert or otherwise, may not be permitted to give an opinion which in effect answers the very question as to the existence or nonexistence of an ultimate fact to be determined by the triers of the facts. Shepherd v. Midland Mutual Life Ins.Co., 152 Ohio St. 6, 87 N.E.2d 156, 12 A. L. R. (2d), 1250. See, also, the discussion in Dickman v. Struble, 104 Ohio App. 44, 146 N.E.2d 636. It would seem that the chemist made a comparison between his findings and certain records on file in his department and there is no showing that such facts were "beyond the experience, knowledge or comprehension of a jury," nor were they such that they could not have been understood by the members of the Board of Liquor Control.

In my opinion the administrative agencies such as the Board of Liquor Control should be bound by the rules of evidence, and even though it is a highly specialized board dealing only with liquor cases, short-cuts such as this should not be permitted by them.

CRAWFORD, J., of the Second Appellate District, sitting by designation in the Tenth Appellate District.