It is insisted that there is a misjoinder of counts in this declaration; that the sixth count is in trespass, whilst the others are in case. This is the only question raised upon this record. If this objection is well taken, the court below erred in refusing to arrest the judgment. The sixth count avers that appellee had a spot on her left eye, which injured her personal appearance, and that appellant falsely, fraudulently and deceitfully represented and pretended to appellee, that by means of his skill and knowledge as an oculist, that he could remove the blemish from her eye, and render its appearance equal to that of her right eye, without any injury to the right eye; and that he would not take out or destroy her left eye, and that she would be well and free from the effects of the treatment in six or sev.en days.
That appellee, confiding in the truth of the representations thus made by appellant, and believing them to be true-, was deceived, and thereby induced, at his special instance and request, to treat her left eye, to make it look as well as the right eye, for the sum of thirty dollars, which she paid to him. But that appellant, well knowing as aforesaid, falsely and maliciously pretended to operate on appellee’s left eye, for the pretended purpose of causing it to look as well as- her- right eye, and to remove the spot therefrom; and did cut and lac erate the left eye, by means of which cutting and lacerating and tearing of the left eye, she suffered great pain ; and that in consequence thereof, her right eye became greatly inflamed, and she suffered great pain, and was obliged to lay out and expend large sums of money for medical attendance for her cure, and was unable to perform labor for a long space of time, It is urged that this count charges the operation to have been performed with malice, and that a direct injury to the person, prompted by malice, constitutes a trespass, for which case cannot be sustained. Direct and immediate force employed by one person against another, without his consent, with malice, constitutes trespass, however slight the injury produced; but it is otherwise when the force used is with the consent or at the request of the person against whom employed. If a dentist extract a tooth for a person at his request, whether necessary or not, it is no wrong; but if unskillfully performed, he would become liable in case for the injury resulting from a want of proper skill. If the same act were performed with malice, and without consent, it would be an aggravated trespass, if not a crime. In this case, the operation was performed at the request of appellee. This prevents her from recovering in trespass, and had the operation been skillfully performed, she could have no right of recovery in any form of action; but if the representations which induced the retainer were false and fraudulent, or if the proper rkill was not employed, then case is properly the remedy.
Nor is it alleged that appellant performed the act itself with malice, but that he maliciously pretended to perform the operation, for the purpose of improving the appearance of the eye, when he well knew that such would not be the result. Nor is it averred that the operation was maliciously performed, for the purpose of inflicting pain and injury upon appellee. , Had the .averment been so made, trespass might probably have been maintained. If, however, the averment had been that the operation was so performed for the purpose of cheating and defrauding appellee of her money, no one would have doubted that the count was in case, and not in trespass. The averment that .the act was done falsely, would render it case. The falsity of the action is the gist, and not the malice, as it was not averred to have been designed to produce pain or injury. The word “maliciously” may be rejected as surplusage, without changing the effect of the count.
The judgment of the court below is affirmed.
Judgment affirmed.