BEAN, J.
1-6. As an expert is not allowed to draw inferences or conclusions of fact from the evidence, his opinion should be exact upon a hypothetical statement of fact. It is the privilege of counsel to assume any state of facts which there is any testimony tending to prove, and to have the opinion of the expert based on the facts assumed. But the testimony should tend to establish the facts embraced in the question. If the hypothetical question is clearly exaggerated and unwarranted by any testimony in the case, an objection to it should be sustained: Rodgers on. Expert Testimony (2 ed.), § 27. The form of the hypothetical question, whether it states facts, or puts facts hypothetically, or refers to the testimony of witnesses as being true, should be shaped so as to give the witness no occasion or opportunity to decide upon the evidence. Hypothetical questions are clearly improper if they directly seek the opinion of the witness on the merits of the case: Rodgers on Expert Testimony (2 ed.), § 28. In a malpractice case the question whether a physician has in a given case adopted the proper treatment is one in which the opinions of medical men may be received in evidence, and they may state [71]*71whether in their opinion the treatment was proper or not, whether it was in conformity with the rules and practice of the profession: Rodgers on Expert Testimony (2 ed.), § 64; 22 C. J., p. 663, § 758; Heath v. Glisan, 3 Or. 64; Hoener v. Koch, 84 Ill. 408; Taylor v. Kidd, 72 Wash. 18 (129 Pac. 406). As the opinion evidence rule is intended to provide against the danger of invasion of the province of the jury, a court should, as far as possible, exclude the inference, conclusion, or judgment of a witness as to the ultimate fact in issue, even though the circumstances presented are such as might warrant a relaxation of the rule excluding opinions but for this circumstance. But the rule is not absolute, for it frequently occurs that the only possible or practicable method of making proof of the fact in issue is by means of opinion evidence: 22 C. J., p. 502, § 597; Jones on Evidence (2 ed.), p. 465, §372.
7,8. It was error to allow the plaintiff to ask Dr. Strickland whether the application of side splints was “unskillful and negligent.” This was done over the objection and exception of defendant’s counsel: Pointer v. Klamath Falls L. Co., 59 Or. 438 (117 Pac. 605, Ann. Cas. 1913C, 1076); Porges v. Jacobs, 75 Or. 488 (147 Pac. 396); Marks v. Columbia County Lbr. Co., 77 Or. 22, 26 (149 Pac. 1041, Ann. Cas. 1917A, 306); Pyle v. Pyle, 158 Ill. 289, 299 (41 N. E. 999); Elliott v. Russell, 92 Ind. 526, 530; 11 R. C. L., p. 616, § 38. The distinction between improper treatment and negligent treatment is not as broad as it is vital. Improper treatment by a surgeon might be due to an error in judgment of a skillful surgeon honestly and carefully exercised, and not constitute negligent treatment: Dishman v. Northern Pac. Beneficial Assn., 96 Wash. 182 (164 Pac. 943). The opinion of [72]*72the expert, Dr. Strickland, left little or nothing for the determination of the jury. It was undisputed that two soft pliable wood splints three and one-half inches in width were applied by Dr. Knott to plaintiff’s wrist, and encircled the same, except for a quarter of an inch on the top and bottom, as Mrs. Lehman stated, or about one-half inch as estimated by another member of her family. It would seem that, in order for the opinions of the experts to be of any assistance to the jury, the condition in which the splints were applied to the arm should have been described. This point was not specifically called to the attention of the trial court. The plaintiff was content to call them “side splints,” and one of the doctors inquired if the anterior and posterior splints were omitted, and was informed by counsel for plaintiff that they were. If the splints practically encircled the wrist, we fail to see that it would be very material whether they were termed side splints, or anterior and posterior splints. While the place where Dr. Knott practiced and treated plaintiff was mentioned, the practice about which the experts were interrogated was in no way confined to the practice in similar localities: 21 K. C. L., p. 385, § 30.
The testimony in regard to the application of the splints was practically the only testimony indicating negligence on the part of the defendant, and the testimony of the experts was very material. We think it precluded the granting of the motion for a nonsuit, or the request for a directed verdict. It is unnecessary to speculate what the testimony would have been if all of the material elements had been called to the attention of the experts.
9. Error is predicated upon the refusal of the court to strike out the testimony of Dr. Welch upon [73]*73the ground that it showed no qualification to answer the hypothetical question, for the reason that he had never treated a fracture of this nature with infection. The point is not well taken. It appears the doctor is skilled in medicine and surgery. The fact that he had never treated a case exactly like the one in question would not disqualify him from giving his opinion. The objection would only go to the weight of his testimony.
10. Error is predicated upon the refusal of the court to permit Dr. Mount, witness for defendant, to testify as to the effect that sloughing would have upon the radius bone and its ability to unite. The objection appears to have been for the reason that there was no evidence in the case that there was any sloughing. We understand the question to pertain to the discharge caused by the infection, which was quite material, and we think the doctor should have been permitted to explain the matter. It was the theory of the defendant that the sloughing prevented a proper union of the parts of the bone.
11. Complaint is made of the instruction of the court to the jury as follows:
“A surgeon must inform himself as to the facts and circumstances of the particular case under his investigation, and if he fails to do so, or fails to possess the knowledge or experience or skill to handle such a case, and a party, by such failure is injured, then the party injured is entitled to recover.”
It was not alleged that the defendant did not possess requisite knowledge and skill to treat the plaintiff. .The gist of the complaint is that he failed to exercise such skill and knowledge. The lack of knowledge of the defendant was also referred to by the court in stating the issues to the jury. We think [74]*74tlie instruction adds to the issues, and might lead the jury outside the case and to consider the qualifications of the defendant: Engstrom v. Wise Dental Co., 97 Or. 634 (187 Pac. 187, 188); Mayo v. Wright, 63 Mich. 32 (29 N. W. 832).
12. Error is also asserted upon the following portion of the charge:
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BEAN, J.
1-6. As an expert is not allowed to draw inferences or conclusions of fact from the evidence, his opinion should be exact upon a hypothetical statement of fact. It is the privilege of counsel to assume any state of facts which there is any testimony tending to prove, and to have the opinion of the expert based on the facts assumed. But the testimony should tend to establish the facts embraced in the question. If the hypothetical question is clearly exaggerated and unwarranted by any testimony in the case, an objection to it should be sustained: Rodgers on. Expert Testimony (2 ed.), § 27. The form of the hypothetical question, whether it states facts, or puts facts hypothetically, or refers to the testimony of witnesses as being true, should be shaped so as to give the witness no occasion or opportunity to decide upon the evidence. Hypothetical questions are clearly improper if they directly seek the opinion of the witness on the merits of the case: Rodgers on Expert Testimony (2 ed.), § 28. In a malpractice case the question whether a physician has in a given case adopted the proper treatment is one in which the opinions of medical men may be received in evidence, and they may state [71]*71whether in their opinion the treatment was proper or not, whether it was in conformity with the rules and practice of the profession: Rodgers on Expert Testimony (2 ed.), § 64; 22 C. J., p. 663, § 758; Heath v. Glisan, 3 Or. 64; Hoener v. Koch, 84 Ill. 408; Taylor v. Kidd, 72 Wash. 18 (129 Pac. 406). As the opinion evidence rule is intended to provide against the danger of invasion of the province of the jury, a court should, as far as possible, exclude the inference, conclusion, or judgment of a witness as to the ultimate fact in issue, even though the circumstances presented are such as might warrant a relaxation of the rule excluding opinions but for this circumstance. But the rule is not absolute, for it frequently occurs that the only possible or practicable method of making proof of the fact in issue is by means of opinion evidence: 22 C. J., p. 502, § 597; Jones on Evidence (2 ed.), p. 465, §372.
7,8. It was error to allow the plaintiff to ask Dr. Strickland whether the application of side splints was “unskillful and negligent.” This was done over the objection and exception of defendant’s counsel: Pointer v. Klamath Falls L. Co., 59 Or. 438 (117 Pac. 605, Ann. Cas. 1913C, 1076); Porges v. Jacobs, 75 Or. 488 (147 Pac. 396); Marks v. Columbia County Lbr. Co., 77 Or. 22, 26 (149 Pac. 1041, Ann. Cas. 1917A, 306); Pyle v. Pyle, 158 Ill. 289, 299 (41 N. E. 999); Elliott v. Russell, 92 Ind. 526, 530; 11 R. C. L., p. 616, § 38. The distinction between improper treatment and negligent treatment is not as broad as it is vital. Improper treatment by a surgeon might be due to an error in judgment of a skillful surgeon honestly and carefully exercised, and not constitute negligent treatment: Dishman v. Northern Pac. Beneficial Assn., 96 Wash. 182 (164 Pac. 943). The opinion of [72]*72the expert, Dr. Strickland, left little or nothing for the determination of the jury. It was undisputed that two soft pliable wood splints three and one-half inches in width were applied by Dr. Knott to plaintiff’s wrist, and encircled the same, except for a quarter of an inch on the top and bottom, as Mrs. Lehman stated, or about one-half inch as estimated by another member of her family. It would seem that, in order for the opinions of the experts to be of any assistance to the jury, the condition in which the splints were applied to the arm should have been described. This point was not specifically called to the attention of the trial court. The plaintiff was content to call them “side splints,” and one of the doctors inquired if the anterior and posterior splints were omitted, and was informed by counsel for plaintiff that they were. If the splints practically encircled the wrist, we fail to see that it would be very material whether they were termed side splints, or anterior and posterior splints. While the place where Dr. Knott practiced and treated plaintiff was mentioned, the practice about which the experts were interrogated was in no way confined to the practice in similar localities: 21 K. C. L., p. 385, § 30.
The testimony in regard to the application of the splints was practically the only testimony indicating negligence on the part of the defendant, and the testimony of the experts was very material. We think it precluded the granting of the motion for a nonsuit, or the request for a directed verdict. It is unnecessary to speculate what the testimony would have been if all of the material elements had been called to the attention of the experts.
9. Error is predicated upon the refusal of the court to strike out the testimony of Dr. Welch upon [73]*73the ground that it showed no qualification to answer the hypothetical question, for the reason that he had never treated a fracture of this nature with infection. The point is not well taken. It appears the doctor is skilled in medicine and surgery. The fact that he had never treated a case exactly like the one in question would not disqualify him from giving his opinion. The objection would only go to the weight of his testimony.
10. Error is predicated upon the refusal of the court to permit Dr. Mount, witness for defendant, to testify as to the effect that sloughing would have upon the radius bone and its ability to unite. The objection appears to have been for the reason that there was no evidence in the case that there was any sloughing. We understand the question to pertain to the discharge caused by the infection, which was quite material, and we think the doctor should have been permitted to explain the matter. It was the theory of the defendant that the sloughing prevented a proper union of the parts of the bone.
11. Complaint is made of the instruction of the court to the jury as follows:
“A surgeon must inform himself as to the facts and circumstances of the particular case under his investigation, and if he fails to do so, or fails to possess the knowledge or experience or skill to handle such a case, and a party, by such failure is injured, then the party injured is entitled to recover.”
It was not alleged that the defendant did not possess requisite knowledge and skill to treat the plaintiff. .The gist of the complaint is that he failed to exercise such skill and knowledge. The lack of knowledge of the defendant was also referred to by the court in stating the issues to the jury. We think [74]*74tlie instruction adds to the issues, and might lead the jury outside the case and to consider the qualifications of the defendant: Engstrom v. Wise Dental Co., 97 Or. 634 (187 Pac. 187, 188); Mayo v. Wright, 63 Mich. 32 (29 N. W. 832).
12. Error is also asserted upon the following portion of the charge:
“It is the duty of a surgeon in cases of this kind to use reasonable care and diligence, first in undertaking to reduce the fracture and to place the hones in apposition; second, in using proper appliances in a proper manner, by the- means within his command, and as a prudent and careful surgeon, situated in like circumstances, under like conditions and similar localities would do; and, unless he does these things, he lays himself liable for ensuing damages that may result from such want of skill and improper treatment and care.”
The objection is that there is no claim in the complaint that defendant was careless in reducing the fracture, or that he did not use proper appliances in a proper manner. Plaintiff complains that the bones were never put into nor kept in apposition, which refers to the reducing of the fracture and the use of appliances to keep the bones in apposition. The instruction is not objectionable except as to the reference to the “want of skill.”
The plaintiff attempts to criticise Dr. Knott for the reason that he did not take an X-ray photograph of her wrist and inform her of the condition of the same. Mrs. Lehman testified that after she returned home from Glendale she saw Dr. Knott at the store, and he examined her arm and said, “It is pretty stiff and pretty crooked.” It therefore seems that the doctor informed her as plainly as he could in regard to the true condition of her wrist. The un[75]*75satisfactory result of the treatment was attempted to be emphasized by the examination of plaintiff’s expert witnesses. The requirements of the exercise of the skill of a surgeon and his liability for the result are plainly delineated in Hills v. Shaw, 69 Or. 460 (137 Pac. 229), in the opinion by Mr. Justice Burnett, and we do not think it necessary to make further comments upon the matter: See, also, Merriam v. Hamilton, 64 Or. 476 (130 Pac. 406).
The judgment of the trial court is reversed, and the cause remanded for such further proceedings as may be deemed proper, not inconsistent herewith.
Reversed and Remanded.
Burnett, C. J., and Johns, J., concur.
Brown, J., concurs in the result.