Gharst v. St. Louis Transit Co.

Citation115 Mo. App. 403,91 S.W. 453
PartiesGHARST v. ST. LOUIS TRANSIT CO.
Decision Date14 November 1905
CourtCourt of Appeal of Missouri (US)

A deposition taken by a notary public in a sister state was authenticated by the notary's signature. The certificate of the clerk of the circuit court annexed to the notary's certificate certified that the notary was a notary, and gave the date of the commencement and expiration of his term of office, and certified that his signature was genuine. Held, that the deposition was sufficiently authenticated; Rev. St. 1899, § 2899, declaring that depositions taken by a notary shall, when certified by him in his official character and accompanied by his seal, be sufficiently authenticated, only providing one method for the authentication of depositions.

3. DAMAGES — MEASURE — PERMANENT INJURIES.

Where the evidence showed that plaintiff before the injury enjoyed good health, that she received a severe blow on the head, causing her to suffer from nervousness and threatening her with paralysis, that her eyes were affected, and that she suffered from dizziness and pains in the head, the court properly authorized the jury to award damages for a permanent injury.

4. TRIAL — INSTRUCTIONS — UNDUE PROMINENCE OF PARTICULAR MATTERS.

An instruction that uncontradicted physical facts at variance with oral testimony are entitled to the greater consideration is erroneous, because singling out physical facts and giving them undue prominence.

5. STREET RAILROADS — PERSONAL INJURIES — ACTIONS — QUESTION FOR JURY.

Where, in an action against a street railway company for injuries to a passenger while alighting from a car, in consequence of its sudden starting, the evidence was conflicting on the question whether the passenger fell in the same direction the car was headed, the court could not say as a matter of law that the physical facts shown by the testimony that the passenger fell in the same direction the car was headed disproved plaintiff's case.

6. TRIAL — INSTRUCTIONS — REQUESTS — INSTRUCTIONS ALREADY GIVEN.

Where the court, in an action against a street railway company for injuries to a passenger while alighting from a car, charged that, while the burden of proving contributory negligence was on defendant, plaintiff had the burden of proving that the injuries were solely caused by defendant's negligence, and if plaintiff's negligence directly contributed to the injuries there could be no recovery, it was not error to refuse to charge that, if the injuries were caused by the concurring negligence of plaintiff and defendant, there could be no recovery, and that plaintiff had the burden of proving that the injuries were solely caused by defendant's negligence, and that defendant's negligence must be the sole cause of the injury before there could be a recovery, and that plaintiff's negligence, directly contributing to the injury, would defeat a recovery, though defendant was also negligent.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Mary C. Gharst against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest, Geo. W. Easley, and Edward T. Miller, for appellant. Wm. H. Davies, for respondent.

BLAND, P. J.

On May 6, 1903, plaintiff was a passenger on one of defendant's street cars, traveling west, on Washington avenue, in the city of St. Louis. Her destination was the intersection of Garrison and Washington avenues. The car stopped when it arrived at the crossing of Garrison avenue. Plaintiff's evidence is that, when the car stopped, several persons preceded her and alighted in safety, and she was in the act of descending the steps of the rear platform when the car was started forward with a sudden jerk, causing her to fall upon the street, striking the back of her head and shoulders on the pavement, and inflicting serious and permanent injuries. Defendant's evidence is that the car stopped two or three minutes to allow passengers to get off, but plaintiff did not leave her seat while the car was standing, and that immediately after the car started she arose from her seat, walked to the back platform, then down the steps and while the car was in motion stepped off, or was thrown off, into the street.

1. Plaintiff offered and read in evidence the deposition of T. S. Emery, taken in the state of Michigan. Defendant moved to suppress the deposition, and also objected to it as evidence, on the ground that it was not properly authenticated by the notary public by whom it purported to have been taken. The objection was overruled, and the deposition was read in evidence. The jurat to the witness' signature on the deposition is as follows: "Subscribed and sworn to before me the fourth day of April, A. D. 1904. Jno. H. Murdaugh, Notary Public, Sanilac Co., Mich." The certificate of the notary public to the deposition is in the usual form, and is sufficient in both form and substance, if it is properly authenticated. It is authenticated as follows: "Given at Croswell, in the county of Sanilac and state of Michigan, this fourth day of April, A. D. 1904. Jno. H. Murdaugh, Notary Public, Sanilac county, Michigan. Commission expires Feb. 6, '07." The following certificate is appended to the certificate of the notary: "State of Michigan, county of Sanilacss. I, James N. Simmons, clerk of the circuit court and of the county and state aforesaid, do hereby certify that Jno. H. Murdaugh is a notary public in and for said county and state, duly qualified to act as such; that his term of office commenced on the fourteenth day of February, in the year 1903, and will expire on the sixth day of February, in the year 1907; and that his signature above written is genuine. Given under my hand and the seal of said county at the village of Sanilac Centre, on this seventh day of April, in the year of our Lord 1904. James N. Simmons, Clerk. [Seal]."

Defendant contends that the signature of the notary should have been attested by his seal of office, and that the signature of the clerk of the circuit court is not sufficient to supply the omission of the notarial seal. The only statute we have in respect to the authentication of depositions taken by a person or officer of this state, or by a person or officer of another state, by authority of the law of this state, is section 2899, Rev. St. 1899, which reads as follows: "Depositions or examinations taken by any person or officer in this state authorized by this chapter, or by any person or officer out of this state appointed by authority of the laws of this state, to take depositions, or by any consul, commercial or diplomatic representative of the United States, or mayor or chief officer of any city, town or borough having a seal of office, or by any notary public, and certified by such person or officer in his official character, and accompanied by his seal of office, if there be one, shall, to all intents and purposes, be sufficient evidence of the authentication of such depositions or examinations." If the officer taking the deposition has no seal of office, the statute is silent in respect to the manner the deposition may be authenticated, nor does it provide that the method therein named for the authentication of the deposition shall be exclusive when the officer taking the same has a seal. Black's Law Dictionary defines a notary public as "a public officer whose function it is to attest and certify, by his hand and official seal, certain classes of documents in order to give them credit and authenticity in foreign jurisdictions." It has been held that in taking depositions a notary public acts as a temporary substitute for the court in which the cause is pending, and hence is a judicial officer. Ex parte McKee, 18 Mo. 599; Swink v. Anthony, 96 Mo. App. 420, 70 S. W. 272; Stirneman v. Smith, 100 Fed. 600, 40 C. C. A. 581; Re Huron (Kan.) 48 Pac. 574, 36 L. R. A. 822, 62 Am. St. Rep. 614.

The office of a notary is a very important one, and the nature and extent of his functions are so varied that it seems he should, as a matter of convenience, have a notarial seal. The Missouri law (Rev. St. 1899, § 8835) requires him to provide a notarial seal and to authenticate therewith all his official acts. The...

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