Plaintiff sued the defendant for damages in the sum of twenty-five thousand dollars, caused by the negligence and want of' skill of defendant’s employee, who* as a dentist, extracted two teeth of plaintiff’s wife.
Plaintiff’s petition sets forth that, on calling at defendant’s office,, she was received by him. She complained of an aching tooth. The-defendant, without having examined her teeth, placed her under the care of an assistant. Thereupon, he, plaintiff avers, the assistant, without any examination or diagnosis to 'make certain that the-pulling of a tooth was necessary, extracted two of the teeth of her lower jaw.
It was charged that it was,wilful negligence and malpractice; that the pulling of her teeth was unnecessary, and that they were pulled in an awkward and unskillful manner. That a few minutes after, *619believing that her jaw bone was fractured, she returned to his office- and earnestly complained of. her affliction, but the assistant, to whom she complained, assured her that she was mistaken; that from the time the teeth were extracted she suffered pain in the bone from which the teeth had been extracted, and twelve days after the piece of the jaw bone had been detached in extracting the teeth; that spicula worked through her gums and was-taken from her mouth by her; that this detached bone in the gums, which defendant’s assistant had failed to take out, .caused inflamation of the periosteum, which inflamation extended to the remaining teeth of the lower jaw. That other teeth were extracted under the advice of a skillful dentist and physicians, without affording her any relief.
It is contended by plaintiff the injury was occasioned by the unskillfulness of defendant’s assistant, which he alleges resulted in necrosis, or decay, of the lower jaw, for which she had to undergo a most painful operation, which resulted, he avers, in disclosing not only periostitis, but also the presence of a lower portion of the detached jaw bone brought about by the unskillful extraction of a tooth; that a piece of the jaw bone had to be removed, and that it broke near the centre, and to preserve its continuity the ends were tied with silver wire, and the pain and suffering have undermined her health, and ha avers -she is a physical wreck and has a permanent scar on her face.
The testimony elicited, on the part of the defense, shows that she was riding a bicycle on St. Charles street about two weeks later, and that a piece of tooth, or spicula of the bone, came out of her gum.
Two weeks after this first ride she fell from her bicycle while again riding.
The defendant pleaded a general denial.
The evidence -shows that previous to the 16th of October, 1896, Mrs. Dunning’s health was very good, and that she has never been in a healthy condition since, and still suffers.
The physician found, a short time after the teeth had been extracted, that she was suffering from diseases of the jaw bone, shown by the signs of inflammatory disturbance about the jaw. One of the witnesses, who had been the physician of plaintiff’s wife, testified that he found no other cause for the trouble except the extraction of the teeth, and added, that he did not know whether they were pulled unskillfully or skillfully, and another of plaintiff’s witnesses, a physi*620dan, also, testified that it was a possibility that her illness was exclusively the result of unskillful extraction of the teeth.
The defendant also examined witnesses, among them a well known dentist with an experience of fifty' years, who said that all dentista who extract many teeth know that it sometimes happens that in extracting a tooth, a portion of the alveola process is broken, especially in pulling, that a little fracture is of no importance; it is a common occurrence; that it would be impossible for a physician, even a dentist, to tell three or four months after teeth had been extracted, whether they have been skillfully or improperly extracted; that, under ordinary conditions, a skillful dentist will not fracture the jaw bone in pulling a tooth, with the exception of possibly a small fracture of the socket, or alveolus, 'at the curvical part of the tooth; that if such an accident should happen, as the breaking off of a part of the jaw bone, ordinary prudence would suggest that the bone should be immediately removed, but that he had never heard of any dentist breaking a jaw bone in extracting an inferior bicusped. The two lower bicuspeds were the teeth extracted.
In answer to a question, this witness testified that if the lower bicuspeds had been extracted with the roots attached, it would be very good evidence of a careful and skillful extraction of those teeth.
Another dentist, an expert witness, testified that it is impossible almost to extract a tooth without some light fracture of the alveola process. lie expressed the opinion that even sometimes after a tooth has been extracted, it is possible to tell whether the teeth have been properly or improperly extracted.
The dentist by whom the teeth were extracted, and the defendant, both testified, denying the charge brought by plaintiff. The former was a graduate of a dental college. He is a dentist since 1890, and has pulled many teeth, as an employee of the defendant, and prior to his employment by him he was engaged in work of that profession. In matter of the facts, we note that the teeth were pulled out October 16, 1896. Some ten or fifteen days after she called on another dentist and had teeth extracted. She consulted her physician on the first of November, 1896. She consulted a specialist, first, in the latter part of October, and again in January following. About the 9th of .February, 1897, a surgical operation was performed.
The District Court rejected plaintiff’s demand.
From the judgment the plaintiff prosecutes the appeal.
*621The first objection now before us for determination comes on a bill of exceptions to the court’s ruling excluding the evidence of Mrs. Dunning, for the reason that the suit was brought in the name cf the husband alone, and that if any damages should be recovered they would fall into the community.
The bill sets forth that the witness was offered to prove her agency, that she made the contract, as the representative of her husband, for services to her personally; and that she being alone cognizant of what she did, and what she suffered, she is a necessary witness within the rule of competency of witnesses where they are the only persons having knowledge of the fact. We will, later, refer to the grounds of the bill of exceptions which are urged by plaintiffs in support of their application to have the case remanded.