State ex rel. Savings Trust Co. v. Hallen
146 S.W. 1171
Mo. Ct. App.
1912
Check Treatment
REYNOLDS, P. J.

(after stating the facts). — The first question for decision in this case, is that of the proximate cause of the loss which the relator undoubtedly has sustained.

In 2 Shearman & Redfield on Negligence (5 Ed.), sec. 602, the general rule governing the liability of notaries public on their bonds, given for the faithful performance of their duties, is stated to be that the officer is liable for incapacity or mistake, or negligence in the performance of these duties, to one who suffers in consequence of want of care in his official capacity.

In State to use of Kleinsorge v. Meyer et al., 2 Mo. App. 413, our court, passing on the question of the liability of a notary public on his bond, when he falsely certifies to a fact required to be stated in the acknowledgment, held that it is no defense in a suit on the bond of the notary that he acted in good faith or that he did not know or suspect that his certificate was false. “That may be granted (says Judge Gantt, l. c. 421), but it is nothing to the purpose. His business was to know that it was true.” To tbe same effect is State ex rel. v Balmer et al., 77 Mo. App. 463; and State v. Grundon et al., 90 Mo. App. 266.

In Fogarty v. Finlay, 10 Cal. 239, the notary omitted from his certificate that the parties were known or vouched for to him, and the court said of this, *436“If the notary read the certificate before signing it, this omission must have been known to him; if he did not, he is equally guilty of negligence, for an officer who affixes his official signature and seal to a document (thereby giving to it the character of evidence), without examining it to find whether the facts certified are true, can scarely be said to faithfully perform his duty according to law. ’ ’

Her own testimony convicts the defendant Hallen of negligence in certifying to this acknowledgment in the form in which she admits that certificate left her hands. She says that if she had read the date line, namely, “sixteenth day of July, 1907,” she would have known that it was the wrong date. Her explanation of this misrecital is that possibly she did not read it. That, as said by the Supreme Court of California in Fogarty v. Finlay, supra, was negligence upon her part.

Counsel for respondent argue against the contention that the notary was negligent in that she let the certificate go, which, on its face, purported to show that the wife had appeared and acknowledged the instrument, and without changing the plurals into the singular person; that she was not bound to fill up the blanks with lines or marks so that the name of the wife could not be inserted after that of the husband, and was not bound to change the plurals into singulars. The certificate of acknowledgment as it left the hands of the notary, distinctly stated that “M. D. Fortner and -his wife,” (name of wife not given), had appeared before the notary and that they were the persons described in and who were known to the notary and who acknowledged before the notary the execution of the conveyance. There is no positive requirement that the name of the wife should be .repeated or inserted in this acknowledgment. Her name appeared in the body of the instrument itself, and the notary certified that the wife of M. D. Fortner had appeared be*437fore her. All the authorities as to the liability of the notary for mistakes in acknowledgments fully meet and cover the proposition that certifying to a wife o.r any person, as present, who was not, is negligence and such negligence as to render the notary liable on his bond as for a false certificate.

In line with this negligence was the failure to change from plurals to the singular. It is true that there are cases in which the use of the plural — persons —has been held not to be material; in fact our statute, section 8053, Revised Statutes 1909, expressly provides that in construing laws, whenever the plural numbers are used in describing any persons or things, a single person or thing shall be deemed to be included. But that is far from reaching this ease. The use of the plural here as describing who had appeared and acknowledged this instrument, M. D. Fortner having been named, followed by the words “and .... his wife,” could only mean that the wife was present and had joined in the act.

The most that can be said in palliation of the negligence of the notary, is that she was a very young woman, barely twenty-two years old; that Fortner had procured her bond and had paid the premium on it; that he was at the time her trusted employer; that this was the first acknowledgment which she had taken and that she took it as Fortner directed. All this, however, is no excuse in law for carelessness. She had applied for appointment and taken up her duties as notary, was of legal age and bound to exercise her office, if not intelligently, certainly with due care.

So much .for the duty of the notary.

That this notary was guilty of negligence in the matters set out is beyond question. That appears not only by the uncontradicted testimony but by the conceded facts in the case. Hence, on the issue of the negligence of the notary, the finding should have been for the relator. This is not a case falling within the rule *438announced in Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S. W. 868, 47 S. W. 907. There is no question here as to the weight of the testimony or credibility of witnesses. The facts as to the acts of the notary, unlike those in the Gannon case, are not only uncontroverted but are conceded.

As to the extent of the liability of the officer and her surety, where a breach of the obligation of the bond has been found, in State ex rel. v. Thompson, 81 Mo, App. 549, our court, Judge Biggs delivering the opinion, held that the bond of the notary is purely one of indemnity and if the relator recovers, the amount of the recovery is limited to the amount of the actual loss sustained by the act of the notary. A different rule seems to have been announced in Michigan in the case of People ex rel. Curtiss v. Colby et al., 39 Mich. 456, l. c. 460, but the learned counsel for relator seem to concede that if a recovery was had here the amount of damage was the loss sustained, that is, the difference in value of the lot between the amount of the notes secured by the genuine deed of trust and that value, $1400.

That brings us to the question as to whether the defense of contributory negligence on the part of relator not having been pleaded, should have been considered by the learned trial court. It is to be borne in mind that contributory negligence was not pleaded, the answer being a general denial.

In Buesching v. St. Louis Gaslight Co., 73 Mo. 219, l. c. 229, it is said that it has been repeatedly decided by our Supreme Court that-it is not incumbent upon the plaintiff in the first instance to show that he was free from negligence or in the exercise of ordinary care, but that the concurring negligence of plaintiff is a matter of defense and the burden o'f showing it is upon the defendant. This doctrine has been followed in many subsequent cases and never departed from.

*439In Allen v. St. Louis Transit Co., 183 Mo. 411, l. c. 424/81 S. W. 1142, onr Supreme Court has said that “it is the rule in this state that contributory negligence is an affirmative defense and to enable a defendant to introduce proof of it he must plead it, but if the plaintiff in his effort to prove his. own case shows that he was guilty of negligence that contributed to the injury complained of, the defendant may avail himself of that showing, although no plea of contributory negligence has been filed.” Here the evidence as to the facts under which the relator made this loan on the faith of the spurious notes and deed of trust'was all developed by examination and cross-examination of relator’s own witnesses; in point of fact, defendants called no witnesses of their own.

In Schultze v. Mo. Pac. Ry. Co., 32 Mo. App. 438, l. c. 447 et seq., the Kansas City Court of Appeals has said: “As a general rule in this state, contributory negligence, to be available as a defense, must be pleaded. [Thompson v. North Missouri Railroad Co., 51 Mo. 190; Donovan v. Hannibal & St. J. R. Co., 89 Mo. 147, 1 S. W. 232.] It is true that the Supreme Court of this state, in Milburn v. K. C., St. J. & C. B. Ry. Co., 86 Mo. 104, held that where, in an . action founded on the negligence of defendant, plaintiff’s evidence shows that his own negligence directly contributed to produce the injury, he disproves the case alleged, and cannot recover, notwithstanding such con-, tribntory negligence is not pleaded. Yet it should not' be understood that in all cases where there may be evidence tending to show contributory negligence such defense may be .raised at the trial though not set up in the answer. To be thus utilized on the trial, the contributory negligence shown in plaintiff’s evidence should be so clear and flagrant as to disprove the cause of action stated in the petition. If it falls short of this, and remains a question of fact, which might be decided either way, then we have little doubt that it *440should he pleaded to be available as a defense. [Brown v. H. & St. J. Ry. Co., 31 Mo. App. 661, l. c. 675; Thorpe v. Mo, Pac. Ry. Co., 89 Mo. 650, 2 S. W. 3; Petty v. Hannibal & St. J. Ry. Co., 88 Mo. 306; Crane v. Missouri Pacific Ry. Co., 87 Mo. 588; Taylor v. Mo. Pac. Ry. Co., 26 Mo. App. 336; St. Clair v. Mo. Pac. Ry. Co., 29 Mo. App. 76.]”

In the case at bar the evidence of contributory negligence on tbe part of plaintiff, appellant here, cannot be said to bave been “so -clear and flagrant as to disprove tbe cause of action stated in tbe petition.” It fell far short of that and was a question of fact “which might be decided either way,” and when that is tbe case, following tbe well supported decision of our bretbern of tbe Kansas City Court of Appeals in Schultze v. Mo. Pac. Ry. Co., supra, “we bave little doubt that it should be pleaded to be available as a defense.”

On consideration of tbe facts in evidence bearing-on tbe question of contributory negligence, we are forced to tbe conclusion that tbe acts of appellant relied upon as constituting contributory negligence on tbe part of respondent are not such as furnish a substantial basis upon which to find contributory negligence.

Tbe doctrine that a scintilla of evidence will support a finding, has no place in our jurisdiction.

“A mere glimmer or spark, a mere scintilla, will not do, but if there is substantial testimony, however small as compared to tbe great body of tbe proof, we bave no right to meddle with tbe weight of it, or ignore it because negative in its character.” So says' our Supreme Court in Dutcber v. Wabash R. R. Co., 241 Mo. 137, 145 S. W. 63, l. c. 71, an opinion delivered February 9th, a motion for rehearing denied March 1, 1912, Judge Lamm quoting freely from Directors, etc., of the Dublin, etc., Ry. Co. v. Slattery, L. R. (1877-8) 3 App. Cases 1155, and following the excerpts be made *441from that ease with the remark that the doctrine there announced by the English courts finds support in the decisions of our own courts.

It is urged as an act negligence of relator that it accepted an instrument, upon the face of the certificate of acknowledgment of which appeared an erasure in the date of the term of the notary. This is the only approach to what may be called contributory negligence of relator. Our Supreme Court, in Kansas City & Southeastern Ry. Co. v. Kansas City & Southwestern Ry. Co., supra (l. c. 68), held that “the fact that a notary does not certify when his term will expire . . . does not, in the least, destroy the effectiveness of the deed, to which he certifies an acknowledgement.” The like construction of our law was adopted by our court in Baskowitz v. Guthrie, 99 Mo. App. 304, 73 S. W. 227, and by the Kansas City Court of Appeals in Brown Mfg. Co. v. Gilpin, 120 Mo. App. 130, 96 S. W. 669. We therefore hold that failure to notice this evident alteration in the certificate, was not such an act of contributory negligence as bars relator from a recovery.

We are unable to notice the action of the trial court in giving and refusing instructions, as they do not appear from the abstract to have been embodied in the bill of exceptions. What purports to be a refused instruction asked by appellant, relator below, appears only in the motion for a new trial. That does not bring it before us as an instruction passed upon by the trial court.

There are other serious defects in the abstract, but as counsel for respondent have not seen fit to avail -themselves of the provisions of our Rule 33, we pass them unnoticed.

The judgment of the circuit court is reversed and the cause remanded.

Nortoni and Caulfield, JJ., concur.