19 Conn. App. 85 | Conn. App. Ct. | 1989
The named defendant,
The plaintiff commenced this negligence action against Steven Riter and Joan Nedovich alleging that on March 11,1988, due to Riter’s negligent operation of Nedovich’s automobile, Riter caused the car to go out of control. He also alleged that the defendant Nedovich was the registered owner of the vehicle and that Riter was operating the car with her consent and within the scope of her “authorization.” As a result of this accident, the plaintiff sustained severe injuries.
Upon commencing this suit, the plaintiff applied for and was granted an ex parte prejudgment attachment on real property of the defendant Nedovich pursuant to General Statutes § 52-278e. The defendant Nedovich moved to dissolve the attachment. After a full hearing, at which the parties stipulated that the sole issue before the court was whether Riter was acting as Nedovich’s agent, the trial court denied her motion.
With respect to the relationship between Riter and Nedovich, the trial eourt found the following facts. At the time of the accident, the defendant Nedovich and her husband, Paul Nedovich, owned two businesses, one in Connecticut and one in Vermont. Riter was employed by the Nedovichs in their Connecticut business. Riter
The trial court determined that the statutory presumption of agency pursuant to General Statutes § 52-183,
In determining whether probable cause exists to maintain a prejudgment attachment, the trial court “ ‘need only weigh the evidence presented and “determine probable success by weighing probabilities.” Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984).’ ” Green v. Holy Trinity Church of God in Christ, 16 Conn. App. 700, 703, 549 A.2d 281 (1988). “ ‘ “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant [a person] of ordinary caution, prudence and judgment,
“This court’s role in reviewing the trial court’s probable cause determination is limited. ‘In its determination of probable cause, “the trial court is vested with broad discretion which is not to be overruled in the absence of clear error.” . . .’ Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985). Our role as a reviewing court is limited to determining whether the trial court’s conclusion was reasonable, and we may not duplicate the trial court’s weighing process. . . . [W]e need only decide whether the trial court’s conclusions were reasonable under the ‘clear error’ standard.” (Citations omitted.) Green v. Holy Trinity Church of God in Christ, supra, 703-704. In reviewing the trial court’s action, we may presume that the trial court acted properly and in rendering its decision, considered all the evidence. Solomon v. Aberman, 196 Conn. 359, 376, 493 A.2d 193 (1985).
Prior to the hearing, the parties stipulated that the only issue to be determined by the court was whether Riter was acting as Nedovich’s agent at the time of the accident, and agreed that for the purpose of the probable cause hearing, the issues of the amount of damages, permissive use and who was operating the car, were not being contested. In rendering its decision that there was probable cause to support the plaintiff’s claim of agency, the court applied the statutory presumption
As a general matter, “[a] presumption in favor of a party, that a particular fact is true, shifts the burden of persuasion to the proponent of the invalidity of that fact, and that burden is met when, by the particular quantum of proof, the validity of the fact has been rebutted. Holland v. Holland, 188 Conn. 354, 357-58, 449 A.2d 1010 (1982) . . . .” Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985). The contradicting evidence required to rebut a presumption must be both sufficient and persuasive. Katz v. West Hartford, 191 Conn. 594, 603, 469 A.2d 410 (1983). With respect to the agency presumption established by General Statutes § 52-183, because the “existence and scope of permission is a matter peculiarly within the knowledge of the defendant,” the defendant’s “simple assertion that no consent [to operate the motor vehicle] was ever given,” is not enough to overcome the presumption. Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973). “[T]he statute goes further than merely establishing a presumption in that it definitely places a burden of rebutting it on the defendant. Thus, the presumption does not necessarily vanish on the introduction of any evidence to the contrary. Rather, ‘[t]he presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff; if no evidence relevant to the issue is produced, or, if countervailing evidence is produced
At the hearing, the plaintiff established that the car was registered to the defendant Nedovich, that Riter was the operator of the vehicle at the time of the accident and that Riter was an employee of the Nedovichs’ company. Having established these facts, the statutory presumption of agency was applicable and it was then the defendant’s burden to rebut the presumption.
As the trier of fact, the trial court could determine what weight, if any, to give to the testimony presented at the hearing. On this record, the trier could have determined that the evidence established to rebut the presumption was not sufficient and persuasive to rebut the presumption; see Katz v. West Hartford, supra; and could have rejected outright the testimony of Paul and Joan Nedovich. See Bogart v. Tucker, supra.
There is no error.
In this opinion the other judges concurred.
The other defendant in the underlying negligence action is Steven Riter, who was the operator of the defendant Nedovich’s vehicle at the time of the accident. He is not a party to the present appeal.
“[General Statutes] Sec. 52-183. presumption of agency in motor VEHICLE operation. In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.”
In view of the applicability of the statutory presumption, it was not necessary, as the defendant Nedovich maintains, for the plaintiff to establish the common law agency elements.