Anderson v. Albertstamm
| Decision Date | 16 May 1900 |
| Citation | 57 N.E. 215,176 Mass. 87 |
| Parties | ANDERSON v. ALBERTSTAMM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Arthur L. Spring, for plaintiff.
Clarence W. Rowley, for defendant.
The defendant objects to the hypothetical questions put to the experts, upon the ground that the hypothesis in each was not in accordance with any view of the facts which the jury could properly take of the evidence, and therefore the question should not have been allowed. Where expert testimony is offered by way of answers to hypothetical questions, much must be left to the discretion of the presiding justice. The jury are instructed to disregard the answers unless they find the facts as assumed in the questions, but, as it cannot be known in advance what may be the ultimate decision of the jury as to the facts in dispute, the usual practice is to allow counsel, in framing a hypothetical question, to assume the existence of such facts and conditions as the jury may have a right to find upon the evidence as it then is, or as there may be fair reason to suppose it may thereafter appear to be; and, in determining whether a hypothetical question shall be allowed, the judge in many cases must rely to a great extent upon the good faith of counsel in their statements as to what they expect the evidence will be. We have examined the evidence in this case as to the services rendered by the plaintiff, and have compared it with the facts assumed in the hypothetical questions to which exceptions were taken, and we see no ground for exception. We think, also, that it sufficiently appears that the question to Mr. Proctor assumed that he knew what was stated in the bill.
The exception to the exclusion of the question to the defendant as to whether he knew that the plaintiff, while acting in the former case, was looking to him for pay, is not argued by the defendant, nor is it included in the statement at the head of the defendant's brief of the questions raised by the bill of exceptions. We therefore regard it as waived. Exceptions overruled.
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