HYPOTHETICAL QUESTION. A question 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 re quiring 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. 501; Veneman v. Jones, 118 Ind. 42, 20 N. E. 644, 10 Am. St. Rep. 100; State v. Hanlqy, 34 Minn. 430, 26 N. W. 397; Poole v. Dean, 152 Mass. 589, 26 N. E. 406; Hathaway's Adm'r v. Ins. Co., 48 Vt. 335; Southern Bell Tele phone & Telegraph Co. v. Jordan, 87 Ga. 69, 13 S. E. 202; In re Will of Norman, 72 Ia. 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 ; McFall v. Smith, 32 Ill. App. 463; Tingley v. Cowgill, 48 Mo. 291; Kerr v. Luns ford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668; Baltimore & L. T. Co. v. Casiell, 66 Md. 419, 7 Atl. 805, 59 Am. Rep. 175; Gulf, C. & S. F. R. Co. v. Compton, 75 Tex. 667, 13 S. W. 667; Prentis v. Bates, 88 Mich. 567, 50 N. W. 637; Quinn v. Higgins, 63 Wis. 664, 24 N. W. 482, 53 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. 398; 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 allow ed to answer a question which excludes from his consideration testimony which is essen tial to the formation of an intelligent opinion concerning the matter ; Vosburg v. Putney, 80 Wis. 523, 50 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. 901 unless it there by fails to present the case fairly ; Appeal of Barber, 63 Conn. 393, 27 Atl. 973, 22 L. R. A. 90.
Where there is any evidence, a hypotheti cal question can be based upon it regardless of the preponderance of evidence on the fact; Catlin v. Ins. Co., 83 Ill. App. 40; Chi cago & E. I. R. Co. v. Wallace, 202 III. 129, 66 N. B. 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 Ia. 154, 78 N. W. 845; Cole v. Coal Co., 159 N. Y. 59, 53 N. E. 670; Soren sen v. Bender, 114 Fed. 1, 51 C. C. A. 627 ; People v. Durrant, 116 Cal. 179, 48 Pac. 75; 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. 562, 48 Pac. 711; or on an assumption of facts which the testimony tends to prove; Medill 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 testi mony 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 ; Frank fort 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 state ment; 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, 15 N. Y. Supp. 176; he may, include as a basis of his opinion, facts known to be true as well as those stated in the question ; Ft. Worth & D. C. Ry. Co. V. Thompson, 75 Tex. 501, 12 S. W. 742 ; Tebo v. City of Augusta, 90 Wis. 405, 63 N. W. 1045.