Hypothetical question

Aques Uon put to an expert witness containing a recital of facts assumed to have been proved or proof of which is offered in the case, and requiring the opinion of the witness thereon. It must present fairly the state of facts which the counsel claims to have proved or which the testimony of the witnesses tends to prove; People v. Augsbury, 97 N. Y. 601; Veneman v. Jones, 118 Ind. 42, 20 N. E. 644, 10 Am. St. Rep. 100; State v. Hanley, 34 Minn. 430, 26 N. W. 397; Poole v. Dean, 152 Mass. 689, 26 N. E. 406; Hathaway’s Adm’r V. Ins. Co., 48 Vt 335; Southern Bell Telephone & Telegraph Co. v. Jordan, 87 Ga. 69, 13 S. E. 202; In re Will of Norman, 72 la. 84, 33 N. W. 374; Woolner v. Spalding, 65 Miss. 204,^3 South. 583; Baker v. State, 30 Fla. 41, 11 South. 492; State v. Anderson, 10 Or. 448; Mc Fall v. Smith, 32 111. App. 463; Tingley v. Cowglll, 48 Mo. 291; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668; Baltimore & L. T. Co. v. Cassell, 66 Md. 419, 7 Atl, 805, 59 Am. Rep. 176; Gulf, C. & S. F. R. Co. V. Compton, 75 Tex. 667, 13 S W. 667; Prentis v. Bates, 88 Mich. 567, 60 N. W. 637; Quinn v. Higgins, 63 Wis. 664, 24 N. W. 482, 63 Am. Rep. 305; People V. Goldenson, 76 Cal. 328, 19 Pac. 161; and such state of facts must be relevant to the issue; Fairchild v. Bascomb, 35 Vt. 308; Williams v. Brown, 28 Ohio St. 547; Barber’s Appeal, 63 Conn. 393, 27 Atl. 973, 22 L. R. A. 90; North American Acc. Ass’n v. Woodson, 64 Fed. 689, 12 C. C. A. 392. The question must contain all the facts proved when it was put; Baer v. Koch, 2 Misc, 335, 21 N. Y. Supp. 974; Mammerberg v. R. Co., 62 Mo. App. 563; and the witness will not be allowed to answer a question which excludes from his consideration testimony which is essential to the formation of an intelligent opinion concerning the matter; Vosburg v. Putney, 80 Wis. 523, 60 N. W. 403, 14 L. R. A. 226, 27 Am. St. Rep. 47; but the authorities as to this point are conflicting, as it has been held that a question should not be rejected because it does not Include all the facts in the case; Davidson v. State, 135 Ind. 254, 34 N. E. 972; Appeal of Barber, 63 Conn. 393, 27 Atl. 973, 22 L. R. A. 90; unless it thereby fails to present the case fairly; Appeal of Where there is any evidence, a hypothetical question can be based upon it regardless of the preponderance of evidence on the fact; Catlin v. Ins. Co., 83 111. App. 40; Chicago & E. I. R. Co. V. Wallace, 202 111. 129, 66 N, E. 1096; and the question may be asked where the hypothesis is based on facts supported by evidence though it does not Include all the facts in evidence; Allison v. Parkinson, 108 la. 154, 78 N. W. 845; Cole v. Coal Co., 159 N. Y. 59, 63 N. E. 670; Swensen V. Bender, 114 Fed. 1, 51 C. C. A. 627; People V. Durrant, 116 Cal. 179, 48 Pac. 76; it need not embrace all the evidence but may be based on any facts within the range of the evidence; People v. Hill, 116 Cal. 662, 48 Pac. 711; or on an assumption of facts which the testimony tends to prove; Medlll V. Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Rep. 307. A question put to an expert witness calling for his opinion may refer him to the testimony in the case if he has heard it, instead of stating the facts which the answer tends to prove, but in such a case the witness must assume the testimony to be true; Jones v. Ry. Co., 43 Minn. 279, 45 N. W. 444; Frhnkfort V. Ry. Co., 12 Misc. 13, 33 N. Y. Supp. 36; and it has been held that he may not base his opinion on the testimony but must confine himself to the hypothetical statement; Link V. Sheldon, 136 N. Y. 1, 32 N. E. 696. The witness may not assume for himself from the testimony the facts on which he bases his opinion without informing the jury what he supposes the facts to be; Connelly v. Ry. Co., 60 Hun 495, 16 N. Y. Supp. 176; he may, Include as a basis of his opinion, facts known to be true as well as those smted in the question; Ft. Worth & D. C. Ry. Co. V. Thompson, 75 Tex. 601, 12 S. W. 742; Tebo v. City of Augusta, 90 Wis. 405, 63 N. W. 1045. The truth of the facts assumed by the question is, in doubtful cases, a question for the jury, and if they find that the assumed facts are not proved, they should disregard the opinions based on such hypothetical questions, and the court will so instruct them; People V. Foley, 64 Mich. 148, 31 N. W. 94; Turnbull v. Richardson, 69 Mich. 400, 37 N. W. 499; but the court is not required to submit the matter to the jury unless there is some substantial evidence tending to establish the hypothesis; Nave v. Tucker, 70 Ind. 15. If there is no testimony in the case tending to prove the facts assumed in the question, it is Improper; the facts must be proved or proof of them must be offered; Turnbull v. Richardson, 69 Mich. 400, 37 N. W. 499; Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 614; Muldowney v. R. Co., 39 la. 615; Reber v. Herring, 115 Pa. 699, 8 Atl. 830; Williams v. Brown, 28 Ohio St. 547; Quiuu V. Higgins, 63 Wis.- 664, 24 N. W. 482, 63 Am. Rep. 805; Woolner v. Spalding, 66 Miss. The length of the question Is to be lated, largely, by the discretion of the Judge; Forsyth v. Doolittle, 120 U. S. Sup. Ct 408, 30 L. Ed. 586; it has been an error to permit it to be so long and plicated as to confuse the witness or his memory; People v. Brown, 53 Mich. 19 N. W. 172; Halsh v. Payson, 107 111. but to obviate this difficulty the court require the question to be reduced to ing; Jones V. Portlandi 88 Mich. 598, W. 731, 16 L. R. A. 437. If unfair and leading, hypothetical cases assumed in ing questions are to be considered in mining whether or not a fair trial has had; Mc Fall v. Smith, 32 111, App. 463 regu- w Ul include the proofs or theory of the adtrial versary, since this would require a party to 73, 7 assume the truth of that which he generally held denies; Goodwin v. State, 96 Ind. 550. Hypocom- thetical questions cannot be asked of an orbaffle dinary observer; State v. Klinger, 46 Mo. 531, 224; Russell v. State, 53 Miss., 367; Appeal 365; of Dunham, 27 Conn. 192. And, as to this, a may professional man, in a matter of which ha writ- has not made special study is doubtless re- 50 N. garded as an ordinary observer. mis- See Expert; Opinion; Evidence. fram-