
    No. 94
    MITCHELL et v. SMART
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5637.
    Decided June 8, 1925
    Judges Mauck, Sayre & Middleton, 4th Dist., sitting.
    480. EVIDENCE — 1. A hypothetical question will not be excluded if the facts assumed in framing the question are born out by the evidence offered at the trial and is allowed under proper instructions of the court.
    2.It would be error for a court to instruct 1 he jury to disregard all the witnesses’ testimony if it found that the testimony was, in part, false.
    Attorneys — Squire, Sanders and Dempsey, for Mitchell et al; Day & Day for Smart; all of Cleveland.
   MAUCK, P. J.

John Smart sued George Mitchell et in Cuyahoga Common Pleas for professional services rendered Mitchell which wer.e reasonably worth $45,000 of which $8000 was paid. Smart recovered a judgment in the Common Pleas and error was prosecuted to the Court of Appeals.

The principal errors assigned by Mitchell were:

Permitting the attorney for Smart to use a hypothetical question in his examination of expert witnesses in order to elict from them their opinion as to the worth of Smart’s services because it was vague; and the refusal by the Court below to charge the jury as requested by Mitchell in connection with Smart’s diary to the effect that unless the jury found that the entries were made in the diary at about the time the occurrence giving rise to the entries took place, they should disregard it. The Court of Appeals held:

1. The hypothetical question was not vague since the witnesses apparently understood it. The court instructed the jury to disregaid the opinion of the witnesses unless they found that the facts assumed in the question were proven by the preponderance of all the evidence, and, viewing the questing together with the instruction, there was no error committed by the court below.
2. It is the contention of Mitchell that the jury should have been instructed to disregard the diary if it found that any one of the entries were made at a time later than the occurrence which gave rise to the entry, having in mind a certain entry which the evidence tends to show to- have been made about a year later than the happening of the occurrence.
3. This contention could not be upheld as it would amount to an instruction that the jury should find all the testimony offered by Smart to be false if it considered that the witnesses testimony was false in part. This is no', the rule.

Judgment affirmed.  