But the same author says, at section 373, that it cannot be expected that the interrogatory will include the proofs or theory of the adversary, since this would require a party to assume the truth of that which he generally denies. Each side, on an issue of fact, has its theory as to what is the true state of facts, and assumes that it can prove it to be so to the satisfaction of the jury, and, so assuming, states the hypothetical questions to the experts accordingly. In such a case, the questions must be so framed as to fairly reflect the facts admitted or proved by him; and, where the party's own evidence corroborates the evidence which has been introduced by the other party to the action, such question should fairly reflect all of the facts so admitted or proved by both sides. But a question should not be rejected because it does not include all of the facts, unless it thereby fails to present the case fairly. Tested by this rule, we think the hypothetical questions submitted to Dr. Matthews were not open to the objection made, and that his answers thereto were properly received.

In Jones v. City of Caldwell, 20 Idaho, 5, 116 Pac. 110, 48 L. R. A. (N. S.) 119, it is said that:

"A hypothetical question which contains facts that are proved or claimed to be proved by either party may be put to an expert for the purpose of obtaining his opinion upon such facts and by so doing such expert witness does not usurp the province of the jury, as the jury is not compelled to accept the opinions of such expert witness against their will, but will weigh such expert opinions as other evidence is weighed by them."

In Eastern Transportation Line v. Hope, 95 U. S. 297, 24 L. Ed. 477, it is said with reference to this subject that:

"It is permitted to ask questions of a witness of this class which cannot be put to ordinary witnesses. It is not an objection, as is assumed, that he was asked a question involving the points to be decided by the jury. As an expert, he could properly aid the jury by such evidence although it would not be competent to be given by an ordinary witness. It is upon subjects upon which the jury are not as well able to judge for themselves as is the witness that an expert as such is expected to testify. Evidence of this character is often given upon subjects requiring medical knowledge and science, but it is by no means limited to that class of cases."

[10, 11] We cannot review in detail all of the authorities cited by appellant in support of the assignment. Some of the courts do hold that an expert witness should not be "permitted to give his opinion upon a vital fact in the case which it was the province of the jury to determine." Chicago City Ry. Co.

In all cases the question should be so framed that the witness is asked to express an opinion, which is all that he can do where the facts are not within his own knowledge. The ultimate fact is always a question for the jury. But where an opinion is given, as was done in this case, in reply to an assumed state of facts, or based on the witness' personal observation and experience with the patient, or upon both, the jury could not well conclude that the statement of such an opinion relieved them of the responsibility of determining what the ultimate facts were. The hypothetical questions propounded to Dr. Matthews and the answers given were' permissible.

It is strenuously insisted that a new trial should be granted upon the errors assigned, and the consideration is urged that above and beyond the pecuniary amount awarded by the jury the professional reputation and good name of the appellant as a physician and surgeon, which it has taken him a lifetime to build up, is at stake. We do not entertain the view that this result usually follows a verdict of this kind, or that it should do so. In view of the great number of operations performed by surgeons, the highly technical character of the work, it is greatly to the credit of the profession that comparatively few mistakes are made. The degree of perfection and avoidance of error that a finite being may reach is limited, and there is always a possibility of failure to exercise such care and diligence as is necessary to avoid disastrous results in highly technical work of this character. The law only requires that degree of care which is ordinarily and commonly recognized as reasonable under the particular facts and circumstances of a given case. Society is greatly indebted to modern surgery, and to the skilled and eminent men who devote their lives to alleviating pain and saving life. However, where unsatisfactory results follow an operation of this character, and it is claimed that they were the direct result of failure to exercise such reasonable care as is ordinarily used by surgeons under similar conditions, and there is competent proof offered in support of such claim, the question of whether such care was used as the law requires becomes a question of fact, to be determined by the jury under proper instructions.

We have examined the record, particularly the transcript of the evidence, consisting of more than 300 pages largely devoted to expert testimony, with more than usual interest, and also the rulings of the trial court complained of and the authorities cited in support of the several assignments. Some of the rulings are more favorable to appellant

than the law requires, for it would not necessarily be reversible error to inquire of a prospective juror, in a case of this kind, whether he was a stockholder in an insurance company which insures physicians and surgeons. In practically every instance where the attention of the court was called to an alleged improper remark or act of respondents' counsel, such counsel was admonished to refrain from the same, and the jury were frequently instructed to disregard the same, or some other proper admonition was given. In view of the entire record, we do not think the errors complained of influenced the verdict to any perceptible degree. It seems clear that the respondent Mary M. Cochran has suffered very great pain over a long period of time, that her health has been permanently injured, and that she and her husband have been to great expense, occasioned by this illness. Their claim that this was the direct result of appellant's negligence in failing to remove the gauze sponge from the incision made in her side at the time he performed the operation, before he closed the incision, was a question of fact which appears to have been properly submitted to the jury. There is evidence to support its findings, and, there being no reversible error of law found in the record, the judgment of the court below should be affirmed. It is so ordered, with costs to respondents.

W. Penn Collins, of Lamar, Colo., and John Hartzler, of Goodland, for appellants.

E. E. Kite, of St. Francis, for appellees. BURCH, J. The appeal was taken from an order of the district court dismissing an appeal from an order of the probate court

relating to adoption of a minor.

Both parents of the minor are dead. Bertha A. Ward is its duly appointed guardian. Bertha A. Ward and her husband offered to

adopt the child, the guardian consenting in that capacity. The appellants offered to adopt the child, and the two offers came on for consideration at the same time. The appellants are strangers to the child, and the guardian refused to consent to its adoption by them. The court found it was for the best interest of the child that it should be adopted by the Wards, and entered an order accordingly.

The appellants discuss the subject of appeal to the district court from an order of the probate court consummating adoption. In some instances an appeal may be taken from the final decision in an adoption proceeding, but an appeal cannot be taken by one who is not affected by the decision. The appellants had no legal interest in the child's custody or nurture, and had no interest in the adoption proceeding after the guardian refused to consent to their offer to adopt. The official conduct of a duly constituted guardian in consenting, or refusing to consent, to adoption of his ward, is not subject

(110 Kan. 231)

In re CORMACK.

WARD et ux. v. LAMB et al.
(No. 23394.)

(Supreme Court of Kansas. Jan. 7, 1922.)

(Syllabus by the Court.)

Adoption 15-Person not obtaining guardian's consent may not appeal from order consummating adoption of child by another.

A person who offers to adopt a child, but who is unable to obtain consent of the child's guardian is not qualified to appeal from an order of the probate court consummating adoption of the child by another.

Appeal from District Court, Cheyenne County.

Proceedings by F. W. Ward and another for the adoption of Charles William Cormack, a minor, opposed by C. J. Lamb and another. From an order of the district court dismissing an appeal from an order of the probate court, defendants appeal. Affirmed.

must find it was freely and voluntarily given, and without the guardian's consent there can be no adoption. Gen. Stat. 1915, § 6362. The result is the appellants were not qualified to question the propriety of the probate court's conduct.

The judgment of the district court is affirmed.

All the Justices concurring.

off the property to her. She declined to complete the bid by payment on the ground that the property was her own, and not that of the execution debtor. As the sheriff was proceeding to advertise and resell the property to pay the judgment against another, her action of replevin was brought. Held, that the attempt to sell plaintiff's property to satisfy a judgment against another was a nullity, that the bid made did not change the ownership of the property, and that she was not estopped to assert ownership of the property in the action of replevin.

Appeal from District Court, Leavenworth County.

Action by Sidonia Kemmerle against Russ Wilson, as Sheriff of Leavenworth county. Judgment for defendant, and plaintiff appeals. Reversed, with directions..

Lee Bond and T. W. Bell, both of Leavenworth, for appellant.

A. E. Dempsey, B. F. Endres, and William Dill, all of Leavenworth, for appellee.

JOHNSTON, C. J. This action involved the right to the possession of a quantity of wheat. Judgment was given against plain

tiff, and she appeals.

There is no real dispute as to the ownership of the wheat. Plaintiff owned it when it was seized by the sheriff as the property of another, but it is claimed that she is estopped to claim possession of it by reason of having made a bid for it when it was offered

for sale. Plaintiff owned the land on which the wheat was grown, and the sheriff levied on it when part of it was not harvested and some of it was lying in bundles on the ground. When the levy was made plaintiff

notified the sheriff that she owned the wheat and the land on which it was grown. He proceeded to advertise it for sale under the execution, and plaintiff then consulted an attorney, procured him to prepare a formal written notice that the wheat belonged to her and not to the defendant in the execution, and that she would hold him responsible ín damages if he should attempt to sell it. Although this notice was given to the sheriff he went to the farm at the appointed time for the sale, where a number of people had assembled. Plaintiff announced to those attending the sale that the wheat levied on was her own and in an emphatic way told them that she would make trouble for any one who would buy it, going so far in her excitement and indignation as to say "that she would put a hole through any one who undertook to take it from her." The sheriff ignored the notices and threats, and proceeded with the sale, and after several bids were made, the plaintiff, in an effort to protect her wheat, made a bid, and the sheriff announced that the wheat had been sold to her. He demanded the sale price, but plaintiff told him she did not have the money, and would have

to go to town to arrange for it. She did go there, where she consulted an attorney, who advised her that she did not have to buy or pay for her own wheat, and then she told the sheriff that she repudiated the bid which she had made, and would not pay for her own wheat. He advised her that he would insist on compliance with the bid, and if she failed to pay he would hold the wheat and offer it for sale again and hold her for any deficiency that there might be at a resale of the property. As he was retaining the wheat and proposing to offer it at another sale, the plaintiff at once brought this action to recover it. The wheat has been converted into money, and is held to await the result of the litigation.

The question presented is whether the plaintiff is estopped to claim her property by reason of the bid she made for it at a protested sale. It is true that ordinarily a bid and an acceptance of it at a sheriff's sale results in a contract upon which the sheriff may sue. Walker v. Braden, 34 Kan. 660, 9 Pac. 613. Ordinarily the bidder cannot liens on it or defects in title to the property avoid his bid on the ground that there are sold. The fact is, however, that the sheriff had levied on property in which the execution debtor had no interest. He had no more right to seize and sell it than he would have to seize and sell the State House or some other government building. In Walker v. Braden, supra, the court in speaking of liens on the property offered for sale, said:

"Only the interest which the execution debtors had in the property was levied upon and sold, and the purchaser took the property subject to any valid and subsisting lien which existed against it."

The execution debtor was not the owner of the property in question, and the sheriff had no authority to levy upon it. It cannot be said that the sheriff made any representations which misled the plaintiff, but he committed a palpable mistake in seizing and offering for sale property not owned by the execution debtor. He is not suing on the bid, nor is this an action to enforce the payment of the bid, but the question here relates to the ownership and right to the possession of the wheat. He was withholding possession when the action was brought, and was proposing to sell it at a public sale as the property of the execution debtor. The ownership and right to the wheat was not changed by the thoughtless bid made by the plaintiff. In a resale of the property the sheriff could only offer it as the property of the execution debtor. He had no authority to sell it when it was first offered, and no more right to sell it as the execution debtor's property at a resale.

Under the circumstances the bid made by the plaintiff did not operate to deprive her of the right to the wheat or estop her to claim