Gulledge v. Shaw, et al.
Docket Number: | 2003-CA-00652-SCT Linked Case(s): 2003-CA-00652-SCT |
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Supreme Court: | Opinion Link Opinion Date: 07-01-2004 Opinion Author: Smith, C.J. Holding: Affirmed in Part; Reversed and Remanded in Part |
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Additional Case Information: |
Topic: Personal injury - Liability of notary public - Respondeat superior Judge(s) Concurring: Waller, P.J., Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Cobb, P.J., and Diaz, J. Dissenting Author : Easley, J. Concur in Part, Dissent in Part 1: Easley, J., Concurs in Part and Dissents in Part Without Separate Written Opinion Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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Trial Court: |
Date of Trial Judgment: 02-22-2003 Appealed from: Marshall County Circuit Court Judge: Henry L. Lackey Disposition: Granted Appellee's 12(b)(6) motion to dismiss. Case Number: M01-148 |
Party Name: | Attorney Name: | |||
Appellant: | L. B. Gulledge, Linda R. Gulledge, Frederick J. Gulledge, Elbert Gulledge, Darryl A. Gulledge, All Individually, and on behalf of the Wrongful Death Beneficiaries of Charlene A. Gulledge, Linda R. Gulledge, Frederick J. Gulledge, Elbert Gulledge, Darryl A. Gulledge and L. B. Gulledge |
BARRETT JEROME CLISBY
D. REID WAMBLE |
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Appellee: | Deborah Shaw, Individually; Unknown Surety on Notary bond; Merchants and Farmers Bank, a Mississippi Corporation, All Jointly and Severally | MICHAEL LEE DULANEY D. KIRK THARP JOHN S. HILL |
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Topic: | Personal injury - Liability of notary public - Respondeat superior |
Summary of the Facts: | The wrongful death beneficiaries of Charlene Gulledge, filed suit against Deborah Shaw, Merchants & Farmers Bank, and an unknown surety, alleging that but for Shaw’s negligence in notarizing the forged signature of Stratford P. “Sonny” Childers on his daughter’s driver’s license application, Childers would not have been dismissed as a defendant in a wrongful death action arising from an automobile accident caused by the daughter’s negligence. The defendants filed a motion to dismiss which the court granted. The plaintiffs appeal. |
Summary of Opinion Analysis: | In a negligence action, a plaintiff must prove by a preponderance of the evidence duty, breach, causation, and injury. Foreseeability is an essential element of causation. If some injury is to be anticipated, the court will find liability even if the particular injury could not be foreseen. However, remote possibilities do not constitute negligence from the judicial standpoint. A notary public is not liable for negligent or wrongful acts which were not a proximate, or cause in fact, of the damages suffered. The specific loss must be proximately caused by the notary’s negligent or wrongful act. Because there is a genuine issue of material fact with respect to Shaw’s liability in this case, i.e., whether Shaw’s actions in notarizing the forged signature was a proximate result of Sonny’s dismissal in the case thus resulting in the plaintiff’s inability to collect on the judgment from Sonny, the court erred in summarily dismissing the case. There is also a genuine issue of material fact regarding the unknown surety’s liability. Under the respondeat superior doctrine, one who acts through another is in law himself the actor. However, where an employee is not acting in the furtherance of her employer’s interests, the employer is not liable for her torts. The record shows that Shaw knew Sonny, Marjorie, and Alice, that she did not charge Alice or Marjorie a fee for her services as a notary, and that this was the only occasion on which Shaw had notarized the signature of a person who did not appear before her when signing a document. Although Shaw’s job responsibilities at the Bank included her notary public duties, her act of notarizing a forged document in this case was not in the furtherance of the Bank’s business. When Shaw notarized the application, she ceased to be an actor on the Bank’s behalf and instead became a private actor seeking to accomplish her own private purpose. Therefore, there is no genuine issue of material fact with respect to whether the Bank may be held liable for any of Gulledge’s claims under the doctrine of respondeat superior. |
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