72 Ill. App. 455 | Ill. App. Ct. | 1897
delivered the opinion oe the Court.
The amended declaration in this case, filed March 22, 1897, avers that the plaintiff is a regularly licensed practitioner of dentistry under the laws of Illinois, practicing his profession at Adams county, Illinois, in connection with his brother, Merritt Eice, where they are known as and commonly called “ The Eice Boys,” “ The Eice Brothers and “ The Bices.” That he exercised and still exercises his profession with ca.re, prudence, skill, learning, caution and' safety, and never at any time used or employed any liquid or anaesthetic or material in such manner as to be injurious, hurtful or dangerous to any person or persons for whom he rendered professional dental services, and was never guilty or suspected to be guilty of committing the grievances charged and imputed to him by-the defendant, etc. Yet, the defendant, well knowing the premises, etc., contriving and falsely and maliciously intending to injure the plaintiff and to bring him into public scandal and disgrace, etc., and to cause to be suspected and believed by divers citizens of this State, etc., that the plaintiff had conducted himself improperly, imprudently, carelessly, negligently, recklessly, ignorantly and in such way and manner in his profession as to prejudice, hurt and endanger the health and lives of persons for whom he rendered professional services as such dentist, etc., and to harass, vex, oppress and ruin said plaintiff in his said practice, etc., on the first day of May, 1896, at said county, in a certain discourse which said defendant then and there had in the presence and hearing of divers persons, falsely and maliciously spoke and published of and concerning the plaintiff in the way of his said profession, etc., the following false, malicious and defamatory words, to wit: “ They (meaning the plaintiff and his said brother) are going to kill somebody with that anaesthetic they (meaning the plaintiff and his said brother) are using.” “ It will cause blood poisoning.” “ The Eice boys (meaning the plaintiff and his said brother) are going to kill somebody some time with that anaesthetic they (meaning the plaintiff and his said brother) are using.” “ It will cause blood-poisoning.” “ The Eice boys (meaning the plaintiff and his said brother) will kill somebody some time if they don’t quit using that anaesthetic,” meaning and intending thereby to charge and cause it to be believed by said divers persons and the citizens of this State generally, that the plaintiff was and had been careless, reckless, grossly negligent and culpably ignorant and unskillful in the way of his work, practice and- services as a practitioner of dentistry, as aforesaid. By means whereof, etc., the plaintiff has been greatly injured in his good name and fame and also in his said profession and business as a practitioner of dentistry, etc., to his damage of $5,000. Defendant pleaded:
1. General issue, not guilty.
2. Statute of limitations.
General replication to each of said pleas:
The secondly amended third plea filed by the defendant, to which a demurrer was by the court below overruled and the sufficiency of which is the only question raised on this appeal, attempts to justify the slander, and alleges that the plaintiff used in his profession, upon persons for whom he did work, an anaesthetic, one of the ingredients of which was cocaine, then and there a dangerous anaesthetic which “ was capable of and at times would produce death and blood-poisoning in persons upon whom the same would be used,” etc., and “ that the said words in the plaintiff’s declaration alleged to have been spoken by the defendant,” etc., setting them out in haee verba, “ were then and there at the time and place, etc., true.” Wherefore defendant spoke the words as he lawfully might, etc.
The demurrer to this plea alleges “ that the same and the matters therein contained in manner and form as they are therein pleaded, are not sufficient in law to bar plaintiff’s action etc., and for special cause alleges that said plea does not answer or justify the charges in the declaration. Said plea attempts to justify a charge not made or found in the declaration. Said plea does not justify in the true sense of the charge. The justification in the plea is not as broad as the charge. The plea does not justify the charge in the sense of the innuendoes, and is otherwise informal, argumentative, uncertain and insufficient.”
The plaintiff in the court below, appellant here, upon the court overruling his said demurrer to said plea of justification, elected to stand by his demurrer. Whereupon the court below gave final judgment against appellant for costs and that he go without day, etc. From this judgment appellant appeals to this court, and contends that the court below erred in not sustaining his demurrer to said plea of justification.
It will be seen by a careful reading of the amended declaration that it charges defendant with having spoken of and concerning the plaintiff in the practice of his profession as a dentist, “ that he is going to kill somebody with that anaesthetic he is using; it will cause blood-poisoning. That he is going to kill somebody some time with that anaesthetic he is using; it will cause blood-poisoning. That he will kill somebody some time if he don’t quit using that anaesthetic.” The plea of justification only states that the plaintiff used in his profession, upon persons for whom he did work, an anaesthetic, one of the ingredients of which was cocaine, a dangerous anaesthetic, which was capable of and at times would produce death and blood-poisoning in persons upon whom the same would be used, etc. And that the said words in the plaintiff’s declaration alleged to have been spoken by the defendant were then and there true, etc.
It will be seen at a glance that the plea of justification is not as broad as the charge in the declaration, and for that reason was bad on demurrer. Sanford v. Gaddis, 13 Ill. 329; Darling v. Banks, 14 Ill. 46. Chitty thus states the rule as to framing a plea of justification: “ It is necessary that the plea should state specific facts, showing in what particular instances, and in what exact manner, the plaintiff has misconducted himself.” Chitty on Pl. marg. p. 494.
Appellee insists, in his brief, that the demurrer to his plea of justification should have been carried back to the declaration, as that was bad on demurrer. We are of the opinion that the trial court would not have been justified in carrying the demurrer back to the declaration, as the declaration is sufficient to be answered; and it seems appellee so thought, because he filed a plea of general issue thereto, and also a plea of the statute of limitations, neither of which pleas he withdrew, and then requested the trial court to carry the demurrer back to the declaration.
For the error of the trial court in not sustaining the demurrer to the plea of justification, we reverse the judgment herein, and remand this case to the court below, with instructions to that court to sustain the demurrer to said plea, and for such further proceedings herein as the law permits.
¡Reversed and remanded with instructions.