On cross are all sterilized before they are put away, | acid condition in most mouths." and they are sterilized when we use them. examination he was asked by plaintiff's Ordinarily, I don't resterilize them, but counsel: sometimes I do." When asked in what man- "Is it the usual practice, among dentists of ner he sterilized them, he said: "Either by common, ordinary prudence in the city of St. boiling them or immersing them in an anti-Louis, to clean their instruments before they treat a patient?" was. He answered: "Well, after every operation the man generally puts the instrument that he used in that case in the sterilizer and-" At this point plaintiff's counsel interrupted him, saying: "That is all I asked." Dr. Oatman, a physician, called as an expert witness for defendant, also testified that it was impossible to have the mouth surgi cally clean; that infection may occur though the instruments used are "absolutely sterile"; that it "happens frequently with all septic solution." He was asked if that "was If the question of defendant's liability were dependent upon whether or not he sterilized his instruments immediately before using them upon plaintiff, no one would doubt that the case made would be one for the jury. Though plaintiff's own testimony regarding this matter, as stated above, is of no great probative force, and that of his Dr. Yeck, a physician who treated plaintiff for the blood poisoning, testified as a witness in his behalf. When asked, on cross-mother was strongly impeached, the testiexamination, how long it would take "an infectious face to swell up from a normal condition to a very abnormal condition," he said: "That might vary. We sometimes have a poison that gains entrance into the tissues that would not manifest itself for a week or 15 days, and at other times it will occur within 12 to 24 hours." mony of these two witnesses constituted substantial evidence on this question of fact. But it devolved upon plaintiff to establish, prima facie, not only that defendant failed to sterilize his instruments at the time, but that this was negligence on his part, and that the injuries for which plaintiff sues proximately resulted therefrom. Dr. Robinson, called as a witness for deDefendant's testimony, uncontradicted, is fendant, testified that he found the condi- that he sterilized his instruments before puttion of plaintiff's mouth very bad; that the ting them away in the case wherein they Plaintiff conmolars on each side were broken off or had were kept when not in use. decayed off even with the gum; that "the tends that this testimony should not be reckgums were in very poor shape, not only those oned with, for the reason that the jury but others"; that plaintiff was complaining could disregard it if they saw fit. But the of pain at the time; that "these teeth were doctrine for which appellant contends in infected before any one touched them." He this connection does not mean that, where the burden is on the plaintiff to show a failfurther testified that in nearly every case where a patient comes to a dentist there is ure to do any act, and the defendant's evisome infection, usually not serious, but that dence that he did do it is uncontradicted, it is a very common thing for it to result then the jury may not only disbelieve his in blood poisoning; that in the course of evidence, but may take such disbelief as his practice he had had perhaps from 100 to supplying the affirmative evidence required 150 patients thus affected, cases of this char- of plaintiff. Spain v. Burch, 169 Mo. App. loc. cit. 108, 154 S. W. 172. acter averaging at least one per month. See, also, FauDr. Turner, a dentist, testifying for de-sette v. Grim, 193 Mo. App. loc. cit. 594, 186 S. W. 1177; Boner v. Nicholson, 179 fendant as an expert, said: "Most everything that we touch, most every Mo. App. loc. cit. 160, 161 S. W. 309. Plainkind of utensil, has bacteria on it. Whether they develop or not is a question of susceptibility and immunity. If the patient is in good physical condition, probably they will not develop; but, if run down and there are large number of bacteria in his mouth, he is likely to have a serious infection." tiff adduced no evidence tending to show a failure on defendant's part to sterilize his instrument before thus putting them away. And the case must proceed upon theory that. though they were so sterilized, it was nevertheless negligence not to resterilize them before using them. Dr. Flemming, another dentist who testified for defendant as an expert, stated that The only direct testimony on the subject it was impossible to thoroughly disinfect is that the practice in the profession, among the mouth so that it would be surgically careful, prudent dentists, is to sterilize inclean, "on account of the crevices between struments either before putting them away the teeth and cavities in the teeth and theor immediately prior to using them. From the testimony as a whole, and particularly them were badly decayed. And the evidence because of the fact that defendant testified that it was his constant practice to sterilize his instruments immediately before using them as well as before putting them away after use, it is argued that the evidence, when viewed in the light most favorable to plaintiff, is susceptible of the construction that: "The usual practice of dentists required the sterilization of defendant's instruments immediately before they were used upon plaintiff." shows that even where such conditions are not present the mouth contains many germs likely to cause infection, and that when the teeth are permitted to thus become decayed and rotten the danger therefrom is greatly enhanced; that infection may occur, and does very commonly occur, where no instruments have been used, originating solely from the condition of the patient and his susceptibility to the ravages of bacteria which are ever present. And aside from this three As to this, we need only say that, were | dentists used instruments in plaintiff's mouth the infection directly traceable to the instru- within as many days. ment or instruments used, perhaps the thoroughness with which defendant sterilized them would be a matter for the jury, as held in Bates v. Dr. King Co., 191 Mass. 585, 77 N. E. 1154. But in the view which we take of the phase of the case presently to be noticed it is unnecessary to pass judgment upon this question. [2-4] The difficulty with plaintiff's case, as we see it, is a lack of evidence of any substantial character tending in law to show that plaintiff's injuries proximately resulted from defendant's negligence, if any, in failing, if he did, to sterilize his instruments immediately before using them. It is axiomatic in the law of negligence that a causal connection must be established between the injury or loss suffered and the negligence with which the defendant is charged. This need not be shown by direct and positive testimony; it is sufficient if it be made to appear by inference or inferences which may be reasonably and legitimately deduced from the facts and circumstances shown in evidence. But if the evidence, when viewed in the light most favorable to plaintiff, giving him the benefit of all inferences which may be properly drawn in his favor, leaves the matter merely to speculation and conjecture, plaintiff's case must fail; for plaintiff carries the burden of adducing substantial evidence tending to affirmatively establish such causal connection. See Battles v. Railways Co., 178 Mo. App. loc. cit. 614, 615, 161 S. W. 614, and cases cited. Under the evidence in the record before us, we think that plaintiff failed to carry the burden thus resting upon him. We have stated the evidence at some length, supra, and it is unnecessary to summarize it here. The infection may perhaps have originated from defendant's instruments, but, on the other hand, the opportunity for infection from a great variety of other sources was at least equally great. Testimony for defendant makes it appear that the infection had its origin prior to the time when defendant undertook to extract plaintiff's tooth. Opposed to this is the mere testimony of plaintiff that he had not suffered pain from his teeth (though Dr. Robinson says that plaintiff came to him because of being in pain therefrom). However this may be, it is undisputed that plaintiff's teeth had been sadly neglected and that many of [5] When the entire evidence touching the matter is viewed, it seems quite clear that the showing made is merely that plaintiff's injury was due to some one of several causes, for one of which only could the defendant be liable; and that which, of these, was the causa causans, is a matter of pure conjecture. Under such circumstances, the authorities agree that no recovery may be had. In this connection, it may be said also that the testimony of Dr. Yeck, plaintiff's witness, makes it appear that the inflammation and swelling which are said to have been present when plaintiff returned home from defendant's office, and which caused intense suffering all of that night, could not have been the result of germs introduced by defendant; for it seems that the poison would not have manifested itself in so short a time. Respondent argues that it is the duty of this court, in passing upon the demurrer, to refrain from drawing inferences in favor of defendant to countervail or overthrow inferences favorable to plaintiff, citing Maginnis v. Railroad, 268 Mo. 667, 187 S. W. 1167, 1168; Hall v. Coal & Coke Co., 260 Mo. 351, loc. cit. 365, 168 S. W. 927; Knoche v. Pratt, 187 S. W.. loc. cit. 580. This we concede. The doctrine invoked is fully expounded in the leading case of Buesching v. St. Louis Gaslight Co., 73 Mo. 219, 39 Am. Rep. 503, which has been cited and followed by a long line of cases in this state. But, as we view the case before us, the evidence is not such as to warrant a verdict against defendant founded upon an inference that the infection originated with defendant's instrument; but shows a mere possibility that plaintiff was thus inoculated with the poison. If some substantial evidence were present having a tendency to exclude other possible origin of the infection, we would have a totally different case to deal with. But the evidence discloses that the infection was one resulting from the presence of bacteria which are ever present and to which plaintiff was constantly exposed both before and after defendant's attempt to extract his tooth; that the decayed condition of plaintiff's teeth rendered him readily susceptible to such infection, a thing quite common in such cases. And while it may not conclusively appear that plaintiff's teeth were infected prior to his visit to defendant-as Dr. Robinson says was the case -the evidence strongly points to this. In the most favorable view of the evidence for plaintiff, we think the origin of the infection is left to pure conjecture. And in order to get his case to the jury it devolved upon plaintiff to get it out of the fog of conjecture | and speculation. See McGee v. Railroad Co., 214 Mo. loc. cit. 530, 114 S. W. 33. debts secured, such failure released the sureties Action by the Bank of Neelyville, a corpo- Abington & Phillips, of Poplar Bluff, for appellants. W. A. Welker and David W. Hill, both of Poplar Bluff, for respondent. In Bates v. Dr. King Co., supra, upon which plaintiff places reliance, as being "a case similar on the facts with the case at bar," the evidence differed widely from that here present. In the first place, the infection was of a character quite different from that STURGIS, J. This is a suit on a promishere involved, being syphilitic. The proof went to show that the plaintiff was thus in- sory note for $363.05 executed to defendant fected by the use of a revolving metal "brush" Loury by the other defendants and by him used by the defendant in cleaning her teeth. indorsed to the plaintiff bank. It is a comThree cuts were made thereby within plain-panion case to those of Bank v. Lee et al., tiff's mouth, and two or three weeks there- 182 Mo. App. 185, 168 S. W. 796, and Bank after syphilitic sores began to form at these v. Lee, 193 Mo. App. 537, 182 S. W. 1016, and places. And the evidence tended to exclude grows out of much the same facts. Each of any other possible origin of the infection. said suits, however, is on different notes. In the case before us, the evidence has no such tendency. On the contrary, it goes no farther, at most, than to make it appear that defendant's negligence, if any, among a great number of possible causes, from any one of which plaintiff's injuries may have proximately resulted. was one The judgment must accordingly be reversed, and it is so ordered. It is conceded that these notes were given for the benefit of Lee, who was in fact borrowing the money from the plaintiff bank. There is no question as to Lee's liability and here, as in the other cases, the other defendants seek to be released by reason of the conduct and representations made by the bank through its cashier, by which they were caused or induced not to take security for their own protection from the principal debt REYNOLDS, P. J., and BECKER, J., con- or, Lee. In the first of these cases this court cur. BANK OF NEELYVILLE v. LEE et al. 1. BANKS AND BANKING 111-REPRESEN- TY. Where a cashier authorized to look after the collection of notes and take security for same, represented to the sureties on notes, on sugges tion being made by them to him that they would take steps to secure themselves, that they need not do so as the bank had taken a mortgage which was ample security for the notes, the bank was estopped by the cashier's representations. 2 [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 269, 270.] 2. PRINCIPAL AND SURETY SURETY-EXTENT. 89-RELEASE OF The sureties in such case were relieved from liability on the notes only to the extent to which they were damaged by being caused to refrain to take securities such as they could have obtained from the principal debtor. [Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 133, 1331⁄2, 136-139.] 3. PRINCIPAL AND SURETY 89-RELEASE OF SURETY-ENFORCEMENT OF MORTGAGE. Where a bank represented to sureties on notes held by it, that it had taken a mortgage which amply secured the notes, and then failed to enforce the mortgage against all the property covered by it and apply the proceeds to the held that, where a creditor gives a surety to In the present case the pleadings are prac- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes notes; that a little later he again talked with | forego or release some right which he otherthe cashier. Objection being made that the wise would not have done, is contrary to statements of the cashier would not be bind- the fundamental principles of estoppel. 32 ing on the bank, the defendant then offered Cyc. 214. The cashier of the bank was into prove by this witness: trusted with the power and duty to collect its notes, and was, at the time, looking after the collection of the Lee notes, of which this is one. He is the chief executive officer of the bank. He had authority to take security for these notes and did so, though it appeared in another case that he took a mortgage on some $4,000 worth of property to secure a single note for about $500. His representation that this mortgage was taken to secure and did amply secure all these notes was clearly made in the line of his duty and apparent authority. To whom else than the cashier would a surety go to ascertain the status of a note on which he was liable? To hold that the surety had no right to rely and act on what the cashier told him is contrary to reason and common experience. Michie on Banks and Banking, p. 802, § 113; Barnes v. Savings Bank, 165 Iowa, 141, 144 N. W. 367, 379. "That on the date mentioned, between the 25th of January and the 1st of February, 1912, that in a conversation with Mr. Welker (cashier) in the bank of Neelyville, while George Stout was present, he stated to Welker that he (Biggs) and the other sureties of Albert Lee were intending to take such steps as might be necessary to secure themselves against loss; that Welker, the cashier, stated to him and Mr. Stout that it wasn't necessary for them to do so, and to rest easy because he had taken a chattel mortgage on all Albert Lee's property, in which chattel mortgage was property enough to secure them against loss on this note in suit and other notes, and that if Albert Lee didn't pay this note in suit when it was due the bank intended to make payment out of the property in the chattel mortgage, and wouldn't look to these sureties; that these sureties, relying upon the representations of Welker then and there made, took no security at all to protect themselves against loss, and that in the meantime Albert Lee became insolvent." Offers to prove similar facts by other witnesses were also made. The court excluded this evidence on the objection that the cashier of a bank had no authority to make any such arrangement, and that same was not binding on the bank, the court remarking: "I think these cases hold that the authoritythat the cashier must be shown to be given special authority, to make this evidence competent; any agreement by the cashier to release, or which would work a release by estoppel, would have to be made by special authority." The court afterwards refused to submit any defense to the jury and left nothing for it to do except calculate the interest and render a verdict in plaintiff's favor. A judgment being entered against all of the defendants, they have taken proper steps to have the case reviewed by this court. [1] The authorities submitted to the trial court and on which he based his ruling are Daviess Co. Sav. Ass'n v. Sailor et al., 63 Mo. 24, and Savings Bank v. Hughes, 62 Mo. App. 576. The question of the authority of the bank cashier to do and say the things which are alleged to be binding on it and to release the indorsers and accommodation makers, whether by way of agreement or estoppel, was not presented on either of the former appeals. It was then assumed by all the parties that the statements and representations made by the cashier were binding on the bank by way of estoppel at least. It is claimed that the above authorities hold to the contrary, but we think not. We may readily agree that a cashier of the bank has not the authority by mere contract or promise to release a party to a note held by the bank since his authority is to collect such notes and not to release them. But to hold that no estoppel arises against a bank by reason of the acts or representations of its cashier, made in the line of his customary duties and authority, which has misled and caused another to change his situation for the worse, as to That a bank may be and frequently is estopped by the acts and representations or even omissions of its cashier or other officer from asserting or enforcing claims which it otherwise would have is held in many cases. In Bank v. Lillard, 55 Mo. App. 675, where the cashier of a bank had innocently taken a forged note as a renewal note and some time later, discovering the forgery, attempted to collect from a surety on the genuine note, it being shown that when such genuine note became due the principal was solvent but later became insolvent, the court said: the principal debtor canceled and marked paid, "If plaintiff's act in surrendering the note to caused these surety defendants to forego or forbear securing or indemnifying themselves from the principal debtor, in consequence of which forbearance they have lost available recourse on him by reason of his insolvency, then they are discharged, regardless of any negligence on the part of plaintiff. If the plaintiff has thus caused them to forego taking security wise would have done so, then in such case or indemnifying themselves when they otherplaintiff's utmost care and prudence would be no answer to the injury done the sureties. Both parties in such case are innocent, but plaintiff is the party, notwithstanding, who caused the injury and must be the one to bear the burden of such injury. We have had occasion to pass upon the general proposition of law as to the release of sureties under kindred conditions to those now presented. We here state what we understand it to be. When a creditor who knows that one occupies the relation of surety to the debt is paid, or cancels the debt, the surety the principal debtor notifies such surety that being appraised thereof, and in consequence of such notice or cancellation changes his situation, as by surrendering security, or refraining and which he otherwise would have taken, he is from taking security which he could have taken discharged. Triplet v. Randolph, 46 Mo. App. 569; Driskell v. Mateer, 31 Mo. 325 [80 Am. Dec. 105]; Carpenter v. King, 9 Metc. [Mass.] 517 [43 Am. Dec. 405]." See, also, Bank v. Danckmeyer, 70 Mo. App. 168; Bank v. Hardesty (Ky.) 91 S. W. Mo.) 729; Hickock v. Farmers' & Mechanics' Bank,, 35 Vt. 476; Bank of Polk v. Wood, 186 S. W. 1186; Hobbs v. Boatright, 195 Mo. 693, 728, 93 S. W. 934, 5 L. R. A. (N. S.) 906, 113 Am. St. Rep. 709. The case of Savings Bank v. Hughes, 62 Mo. App. 576, relied on by plaintiff, goes no further than to hold that a bank cashier had no authority to discharge by contract a sure ty on a note without receiving payment. The discharge there claimed was based on a statement or promise by the cashier that, if the surety would aid the bank in getting security on another note to which he was not a party, the bank would release such surety from the note on which he was liable. There was no claim that the surety had been induced to refrain from protecting himself or that he was injured in any way. There is no estoppel in that case. The syllabus of the case of Daviess Co. Sav. Association v. Sailor, 63 Mo. 24, relied on by plaintiff, is somewhat misleading, and goes further than the court actually decided. All that was proved in that case was that the surety went to the bank and asked the cashier if the note was paid; that the cashier said it was not, but that another bank had a mortgage on all the principal debtor's land, was carrying him, and that his bank would not look to the surety any longer for payment; that in consequence of these statements the surety thought no more of the matter and was surprised when sued on the note. The court ruled: ** * * "In view of these principles and authorities, we think the cashier of a bank has ordinarily no power to discharge a debtor of the bank without payment, or to bind the bank by an agreement that a surety should not be called upon to pay a note he had signed, or that he would have It would be otherwise, we think, as to his declaration no further trouble from it. that the note was paid. It is his duty to receive payment and to keep the account of it, and he is the proper person to apply to, to asIt would, indeed, be peculiarly within the scope certain whether a note has been paid or not. of the business confided to him to give such information. If, then, on being inquired of by a surety, he had informed him that the note was paid, intending that he should rely upon the statement, and the surety was thereby induced to change his position, the bank would be estopped to deny that the note was paid." If If the case of Daviess Co. Sav. Ass'n v. Sailor, supra, be construed to hold that a bank cannot be estopped by the representations of its cashier so as to discharge a surety, then it is in conflict with the case of West v. Brison, 99 Mo. 684, 13 S. W. 95. In that case the court held that an administrator whose business it was to collect debts due the estate, yet had authority to extend the It being time of payment of an obligation, and by so doing would discharge a surety. shown, however, that there was no agreement to extend payment for a valuable consideration or definite time such agreement was void. "There are, however," says the court, "other principles of law applicable to this case. the creditor gives the surety to understand that he will look to the principal debtor, alone, for payment, and the surety is thereby lulled into security to his loss, the creditor should suffer the consequences. Thus it was held in Harris v. Brooks, 21 Pick. [Mass.] 195 [32 Am. Dec. 254] that a parol declaration of the holder of a note to the surety, that he would exonerate him and look to the principal only, and the surety by reason thereof omitted to take up the note and secure himself, constituted a good defense for the surety. Though a promise to look to the principal debtor alone for payment, standing by itself, would be a nudum pactum, still, as has been said, 'where, however, the surety is induced by such an assurance to surrender the securities which he has received from the principal, or to forego any means of indemnity or protection, an estoppel will arise to the extent of the resulting loss.' Here Bri2 Am, Lead. Cas. (5th Ed.) 481. son, the surety, was lulled into security by Turning to the case of Cochecho Bank v. the assurance of Brooks, for a period extendHaskell, 51 N. H. 116, 12 Am. Rep. 67, cited ing from 1874 or 1876 to 1885, and in the by the Supreme Court as the basis of its de- meantime the principal debtors and all of the cision, we find that the court distinguishes other sureties became insolvent. The princibetween mere promises and statements of the pal debtors had furnished security by the release a deed of trust, executed in 1876, sufficient to bank's cashier that it would surety or no longer look to him for payment satisfy the balance due upon the judgment; as being a void contract, and statements and but this security became depreciated by the representations of fact made by such cashier laches of Brooks. It would be nothing short which induces another who had a right to of giving effect to a fraud to require the rely thereon to do or omit doing something Brison estate to pay any part of the judgto his injury; that is, between contract and ment under these circumstances." This is a clear holding that a promise or representation estoppel. The court there said: "There was nothing in this statement from which the witness had a right to assume that the note had been paid, or otherwise secured; on the contrary, the very reverse was stated in plain words, and the information in regard to what had been done in the bank at Chillicothe, did not give any assurances that this note had been provided for in the mortgage taken Assuming, however, that the by that bank. cashier's assurance was that the debt was otherwise secured, and that the defendant would not be troubled, that was, as the court of New Hampshire declares in Cochecho Bank v. Has kell, 51 N. H. 116 [12 Am. Rep. 67], a case cited and relied on by both parties, a mere agreement to discharge the surety, and not within the ordinary scope of a cashier's authority. * There is no dispute in this case in regard to the general principles of estoppel. They are recognized by this court in Driskell v. Mateer, 31 Mo. 325 [80 Am. Dec. 105]. The only question for this court to decide is, how far declarations and statements by an officer of a bank, called a cashier, binds the bank, in a case where there is no evidence to show special authority." |