#### Johanna Theisen, Defendant in Error, v. Axel Nogard and Harry E. Lawver, Plaintiffs in Error.

Gen. No. 18,152.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1912.

Reversed with finding of facts.

Opinion filed November 3, 1913.

Statement of the Case.

Action by Johanna Theisen against Axel Nogard and Harry E. Lawver, trading as Harvard Dentists, to *159recover damages for injuries sustained Tby plaintiff alleged to have been caused by malpractice and negligence of defendants in performing dental work for plaintiff. From a judgment in favor of plaintiff for two hundred and seventy-five dollars, defendant brings error.

Abstract of the Decision.

1. Physicians and surgeons, § 22 * —when evidence insufficient to show malpractice in dental work. In an action to recover damages for malpractice in dental surgery and for negligence in performing dental work, causing plaintiff to suffer from a splintered and broken jaw, evidence held insufficient to sustain a recovery by plaintiff where it does not show malpractice nor the employment of any method other than that usually employed by dentists and there is no evidence of “a splintered and broken jaw.”

2. Damages, § 206 * —necessity of instruction being based on the evidence. Instruction informing the jury that they might consider the loss of time and the damages from permanent as well as temporary injuries, if they are proved, is erroneous where there is no evidence of the value of the time “lost” nor any evidence of “permanent injuries” in the record.

3. Instructions, § 118 * —necessity of being based on pleadings and evidence. An instruction must be on a theory advanced by the pleadings and which there is some evidence to support.

James B. Poynton and Pattison & Shaw, for plaintiffs in error; Douglas C. Gregg, of counsel.

No appearance for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Justice Brown

delivered the opinion of the court.