61 Conn. App. 29 | Conn. App. Ct. | 2000
Opinion
The plaintiff, Carl R. Bauer, cross appeals from the judgment of tire trial court granting the motion to set aside the jury’s verdict filed by the defendant H.N.S. Management Company, Inc. (H.N.S.), doing business as Connecticut Transit, in this personal injury action.
The following procedural history is relevant to this appeal. The plaintiff brought an action for negligence seeking to recover damages for personal injuries arising out of a motor vehicle accident that occurred on October 20, 1992, on High Ridge Road in Stamford. The plaintiff named four defendants: Fairfield Home Oil Corporation, Malcolm C. Pounds, H.N.S. and Doe. The plaintiff alleged that a city transit bus and an oil truck were negligently operated, thereby causing the accident and his injuries. The plaintiff alleged that the oil truck was owned by Fairfield Home Oil Corporation and operated by Pounds. The plaintiff alleged that the bus was “owned and/or operated by the defendant Connecticut Transit and driven by an unknown driver, John Doe,
The case was tried to a jury. At the close of the plaintiffs case-in-chief, H.N.S. made a motion for a directed verdict “because there [was] no evidence to support the allegation that the bus was in fact owned by Connecticut Transit.” The court denied the motion.
The jury returned a plaintiffs verdict in the amount of $100,300 against all of the defendants. The jury found
Thereafter, H.N.S. filed a motion to set aside the verdict
I
The plaintiff claims that the motion to set aside the verdict was based on factual and legal grounds different from those set forth in the motion by H.N.S. for a directed verdict that was denied after the close of the plaintiffs case-in-chief. He argues that our law is clear that a motion to set aside the verdict must be based on the same grounds as were alleged in the motion for a directed verdict.
The plaintiff claims that when H.N.S. filed its motion to set aside the verdict, it incorporated into that motion facts that were not presented at trial such that the motion to set aside the verdict was factually different from the earlier motion for a directed verdict. The plaintiff specifically claims that the “motion for a directed verdict was based upon the fact that the plaintiff failed to prove that the bus in question was owned by Connecticut Transit.” The plaintiff contrasts that motion with the motion to set aside the verdict, and argues that H.N.S. “altered tactics and subsequently claimed that the plaintiff failed to prove that the bus in question was owned by . . . H.N.S. Management Co., Inc., which
The plaintiff also argues that the fact that H.N.S. and Connecticut Transit “may be different entities was never raised by defendants’ trial counsel prior to the motion for a directed verdict. . . .”
“The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied, is considered renewed by the motion for judgment notwithstanding the verdict.” Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998); Practice Book § 16-37; see also 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 203, p. 823. Practice Book § 16-37 “provides for a motion for judgment notwith
We do not find the plaintiffs arguments on this issue persuasive. In this case, fairly viewed, the motion to set aside the verdict was sufficiently in accordance with the motion for a directed verdict. It is evident that the motion for a directed verdict alerted the court and the plaintiff that the claim was one of insufficiency of the evidence, i.e., that there was no evidence to prove that Connecticut Transit owned the bus involved in the accident that allegedly caused the plaintiffs injuries. The basis of both motions was that there was no evidence proving the ownership of the bus. That one motion referred to H.N.S. and the other referred to Connecticut Transit was not a change in substance. As we discuss in this opinion, H.N.S. and Connecticut Transit, in legal contemplation, are one and the same defendant. Moreover, the briefs of both parties, as well as their trial posture, recognized and fairly represented to the court
“A corporation is a person although it is not a natural person.” M. Ford, Connecticut Corporation Law & Practice (2d Ed. 2000) § 2.02, p. 2-10. It appears well settled that the use of a fictitious or assumed business name “does not create a separate legal entity . . . [and that] [t]he designation [d/b/a] ... is merely descriptive of the person or corporation who does business under some other name.” (Internal quotation marks omitted.) Pinkerton’s, Inc. v. Superior Court, 49 Cal. App. 4th 1342, 1348, 57 Cal. Rptr. 2d 356 (1996), quoting Providence Washington Ins. Co. v. Valley Forge Ins. Co., 42 Cal. App. 4th 1194, 1200, 50 Cal. Rptr. 2d 192 (1996); see Duval v. Midwest Auto City, Inc., 425 F. Sup. 1381, 1387 (D. Neb. 1977), aff'd, 578 F.2d 721 (8th Cir. 1978); Wood Mfg. Co. v. Schultz, 613 F. Sup. 878, 884 n.7 (W.D. Ark. 1985); Jaffe v. Nocera, 493 A.2d 1003, 1008 (D.C. 1985); Southern Ins. Co. v. Consumer Ins. Agency, Inc. 442 F. Sup. 30, 31 (E.D. La. 1977); Patterson v. V & M Auto Body, 63 Ohio St. 3d 573, 575, 589 N.E.2d 1306 (1992); Carlson v. Doekson Gross, Inc., 372 N.W.2d 902, 905 (N.D. 1985); see also American Express Travel Related Services Co. v. Berlye, 202 Ga. App. 358, 360, 414 S.E.2d 499 (1991), cert. denied, 202 Ga. 905 (1992) (“[t]he use of d/b/a or ‘doing business as’ to associate a tradename with the corporation using it does not create a legal entity separate from the corporation but is merely descriptive of the corporation”).
H.N.S. moved for a directed verdict on the basis that the plaintiff had failed to prove that Connecticut Transit owned the bus. Although the court denied the motion, the plaintiff was effectively on notice that H.N.S. did not believe that he had met his burden of proving that element of his prima facie case. “The motion for
We conclude, therefore, that the motion to set aside the verdict was sufficiently in accordance with the motion for a directed verdict so that the plaintiffs argument that the motions were based on different factual and legal grounds must be rejected.
II
Next, we turn to the plaintiffs claim that the court improperly granted the motion to set aside the verdict because there was sufficient evidence from which the jury reasonably could infer that H.N.S. owned and operated the bus. The plaintiff claims that the court should have considered the law of agency and the doctrine of respondeat superior.
A
Certain additional circumstances concerning the pleadings and the posture of counsel must be set out to put our analysis and discussion in context. In paragraph two of the first count of the second amended complaint, the plaintiff alleged that “[t]he defendants are . . . H.N.S. Management Company, Inc., d/b/a Connecticut Transit (hereinafter referred to as ‘Connecticut Transit’) and John Doe, address unknown.” In its answer to that allegation, H.N.S. pleaded that it lacked “sufficient information upon which to form an opinion or belief,
The record shows that the answer, including a special defense of comparative negligence, was interposed by “The Defendant: H.N.S. Management Company, Inc., d/b/a Connecticut Transit by John A. Blazi [its attorney].” When counsel for the plaintiff was questioned by this court whether the appearance filed in the first instance by the bus company was also filed in the same fashion, i.e., H.N.S. Management Company, Inc., doing business as Connecticut Transit, he indicated that he believed it was.
Counsel for the bus company argued that there was no mention of H.N.S. before the jury, but only of Connecticut Transit. Therefore, he argued, there was no evidence of any link between H.N.S. and Connecticut Transit to permit the jury to find that H.N.S. owned the bus involved in the accident so as to impose liability on H.N.S.
It is sufficient at this point to note that the bus company was sued and defended this action under the name and style of “H.N.S. Management Company, Inc., d/b/a Connecticut Transit.” It is clear from what we have said earlier that where a legal entity such as H.N.S. is sued as “doing business as Connecticut Transit” and defends in that posture, H.N.S. assumes a designation that, in legal contemplation, the bus company defendant is one
In its opening remarks to the jury, the court stated that the defendants were Fairfield Home Oil Corporation, Malcolm C. Pounds and “H.N.S. Management Company, which does business as Connecticut Transit.” That was not changed by the fact that when the court asked counsel at the outset of the proceedings to introduce themselves, Blazi identified himself as “attorney John Blazi for the defendant Connecticut Transit.” That also was not changed by the fact that Blazi introduced himself to the jury panel by stating, “My name is John Blazi, and I represent Connecticut Transit.” Moreover, during the trial, Blazi repeatedly referred to “Connecticut Transit” when he referred to H.N.S. Those repeated references reinforce the inference that H.N.S. was Connecticut Transit in that H.N.S. owned and operated the buses that reasonably could be identified as “Connecticut Transit” buses, including the one involved in the accident that allegedly caused the plaintiffs injuries.
On the basis of what we have stated, it is difficult to accept the claim by H.N.S. that it lacked “sufficient
B
With this background in mind, we examine the propriety of the court’s action in setting aside the verdict because there was insufficient evidence to prove that H.N.S. owned the bus involved in the accident that allegedly caused the plaintiffs injuries. In setting aside the verdict, the court found that without evidence of proof of ownership, the plaintiff could not prove that the alleged bus driver, the defendant Doe, was an agent of H.N.S. under § 52-183.
The court “should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion . . . .” (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). “In reviewing the court’s action in rendering a judgment notwithstanding the verdict, we consider
The jury could have reasonably found the following facts relevant to this appeal.
The plaintiff was in the right lane, traveling north, “a fair distance back,” and the bus was blocking his lane. The plaintiff moved his vehicle into the left lane. As he closed the distance between his vehicle and the bus, the bus driver “turned his turn signal on and turned into [the plaintiffs] lane at the same time” in what the plaintiff testified was “a sudden and immediate movement. ” The plaintiff reacted. He downshifted and turned his car into the right lane to avoid hitting the back of the bus.
When the plaintiff cleared the bus, he realized that he was “looking” at an oil truck that was parked and blocking traffic in the right lane. The plaintiff slammed
A woman witnessed the accident. She was operating her vehicle three or four car lengths behind the plaintiffs vehicle. The woman testified that while she could not give the name of the bus involved, it was one of “whatever the city . . . buses [are] that run back and forth on High Ridge Road.” She further testified that other buses like that stop at the Rippowam bus stop.
The plaintiffs attorney called as a witness a superintendent of Connecticut Transit, Joseph Stroman,
Stroman testified in his capacity as a superintendent with Connecticut Transit.
“The word ’owner’ has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used.” Warren v. Borawski, 130 Conn. 676, 679, 37 A.2d 364 (1944). In Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972), our Supreme Court stated that “[t]he term ‘owner’ is one of general application and includes one having an interest other than the full legal and beneficial title.
. . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. ... It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof.” (Citations omitted.) See also Gill v. Pelrazzuoli Bros., Inc., 10 Conn. App. 22, 27, 521 A.2d 212 (1987).
In this case, as we have pointed out, “Connecticut Transit” was not only the shorthand method by which the court and counsel referred to the defendant H.N.S. Management Company, Inc., doing business as Connecticut Transit, but Connecticut Transit was not per se a legal entity.
For the foregoing reasons, we conclude that the court acted improperly in granting the motion by H.N.S. to set aside the verdict.
The judgment is reversed in part and the case is remanded with direction to render judgment on the verdict for the plaintiff as against the defendant H.N.S. Management Company, Inc., doing business as Connecticut Transit. In all other respects the judgment is affirmed.
In this opinion the other judges concurred.
The jury returned a verdict in favor of the plaintiff and apportioned the liability among the defendants, H.N.S., Fairfield Home Oil Corporation, Malcolm C. Pounds and an unidentified defendant, John Doe. Although the defendants Fairfield Home Oil Corporation and Pounds initially appealed from the judgment against them, they subsequently withdrew their appeal and have paid their apportioned share of the jury’s award of damages. Neither Fairfield Home Oil Corporation nor Pounds are parties to this appeal. We refer in this opinion to H.N.S. and Doe as the defendants.
The actual name of the driver is not disclosed in the evidence because the bus proceeded from the scene of the accident without stopping.
Interrogatory number six submitted to and answered by the jury stated the following: “6. Did the negligence of more than one party combine to cause the accident?” The jurors responded, “Yes,” to that question. The interrogatory continued: “If the negligence of more than one party combined to cause the accident, please attribute the percentage of negligence to each party that combined to cause the accident.*
“ ‘JOHN DOE’
“H.N.S. MANAGEMENT JL5_ percent
“MALCOLM C. POUNDS _47_percent
“FAIRFIELD HOME OIL
“CARL R. BAUER 38 percent
“* Note, the combined negligence of all responsible parties must equal 100 percent.”
The motion to set aside the verdict recited the following: “The defendants, H.N.S. Management Co., d/b/a ‘CT Transit,’ and ‘John Doe’ respectfully move the court to set aside the verdict in this matter insofar as there was no proof offered at the trial that the defendant, H.N.S. Management, Inc., owned the bus that was allegedly involved in the accident involving the plaintiff. A memorandum of law is attached and incorporated by reference.
The Defendant:
H.N.S. Management Company, Inc., d/b/a Connecticut Transit
By-
John A. Blazi, Esq.
Law Offices of John A. Blazi 1138 West Main Street Waterbury, CT 06708”
General Statutes § 52-183 provides: “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 the plaintiffs principal brief, he asserts that H.N.S. “improperly included facts that were not introduced at trial. [Its memorandum of law in support of its motion to set aside the verdict] indicates that ‘Connecticut Transit’ is allegedly a trade name used by more than one corporate entity. . . . This alleged fact was never introduced at trial . . . .”
During oral argument, counsel for Connecticut Transit was asked whether the plaintiffs assertion was correct. He admitted that there was no evidence before the jury that other companies in Connecticut used “Connecticut Transit” as a trade name. In its brief, H.N.S. argues that “H.N.S. Management Company, Inc., a corporate legal entity ... is one of several management companies in Connecticut doing business as ‘Connecticut Transit.’ ” In its memorandum of law in support of its motion to set aside the verdict, H.N.S. states that “ ‘Connecticut Transit’ is a trade name that is used by several bus companies operating transit systems in Connecticut and [that] H.N.S. Management Company does not have exclusive use of that trade name . . . .” H.N.S. also argued in the same memorandum that there was no evidence from which the jury could “reasonably infer that the particular bus involved in the accident was owned by H.N.S. Management as opposed to other bus companies that use the same trade name.” (Emphasis added.) There was no such evidence before the jury.
Plaintiffs counsel argued in his brief that he could have altered his trial strategy at that point, and although he may not have decided to withdraw the claim against H.N.S., doing business as Connecticut Transit, he may have at the very least elicited evidence to support the element of ownership in his cross-examination of the defendants’ witnesses. See also State v. Avcollie, supra, 178 Conn. 454 (following defendant’s motion for directed verdict, at close of state’s case, both parties permitted to offer additional evidence).
Counsel for the defendant bus company indicated at oral argument that this was incorrect. The appearance for the bus company does not appear in the record.
The introduction by counsel to the jury panel took place after the court told the jury panel that “[1,]he plaintiff is Carl R. Bauer, and there are three defendants, Malcolm C. Pounds, Fairfield Home Oil Corporation and H.N.S. Management Company, which does business as Connecticut Transit." (Emphasis added.) At that time, counsel for H.N.S. also informed the jury panel that he represented the defendant Doe, the bus driver, as well as the bus company.
The jury reasonably could have found other facts, but we set out here only those that concern the basis of the court’s decision to grant the motion to set aside the verdict.
The plaintiff testified that this bus was “a Connecticut Transit green and blue city bus.”
Stroman testified under subpoena by the plaintiff.
On direct examination by the plaintiffs counsel, Stroman testified in relevant part:
“Q. Just very briefly, what is your position with Connecticut Transit?
*43 “A. I’m a superintendent.
“Q. And how long have you had that position?
“A. About nine years.
“Q. Olcay. And has it been always for Connecticut Transit?
“A. Always for Connecticut Transit.”
We note that the interrogatories submitted to and answered by the jury contained the following question underscoring the status of the defendant bus company:
“1. Were the defendants ‘John Doe’ and H.N.S. Management Co. (Connecticut Transit Co.) negligent in any of the ways alleged by the plaintiff in causing the plaintiffs accident?”
The bus company failed to raise any question about the form of that interrogatory, which the jury answered in the affirmative.
See footnote 5.