Munson v. United Technologies Corp., Hamilton Standard Div.

• Decision Date: 07 July 1992
• Docket Number: No. 10187,10187
• Citation: 609 A.2d 1066,28 Conn.App. 184
• Court: Connecticut Court of Appeals
• Parties: Richard MUNSON v. UNITED TECHNOLOGIES CORPORATION, HAMILTON STANDARD DIVISION.

Page 1066

609 A.2d 1066

28 Conn.App. 184

Richard MUNSON v. UNITED TECHNOLOGIES CORPORATION, HAMILTON STANDARD DIVISION.

No. 10187.

Appellate Court of Connecticut.

Argued March 25, 1992.

Decided July 7, 1992.

Daniel E. Livingston, with whom was Mary E. Kelly, Hartford, for appellant (plaintiff).

Joseph C. Zemetis, Hartford, for appellee (defendant).

Before FOTI, LAVERY and HEIMAN, JJ.

LAVERY, Judge.

This appeal involves the plaintiff's claim that the defendant wrongfully terminated his employment. The plaintiff, Richard Munson, brought an action in three counts against the defendant, United Technologies Corporation, Hamilton Standard Division, alleging that the defendant's termination of his employment was wrongful because it breached their employment contract and breached an implied covenant of good faith and fair dealing, and employees of the defendant had made negligent misrepresentations to him. After a jury trial, the trial court directed a verdict for the defendant on the negligent misrepresentation count, and submitted the remaining two counts to the jury. The jury rendered a general verdict for the defendant on both counts.

On appeal, the plaintiff claims that the trial court improperly (1) excluded admissible testimony, (2) directed a verdict for the defendant on the negligent misrepresentation count, (3) charged the jury on the relevant contract law, and (4) refused to grant either the motion to set aside the verdict or the motion for a new trial. The plaintiff further asserts that the trial court's action is not protected by the general verdict rule. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1973, the plaintiff applied for and accepted a position as a security officer with the defendant. ¹ The plaintiff remained in the employ of the defendant for the next eleven years. Because of the plaintiff's tardiness from November, 1983, through October, 1984, he received four formal warnings from his supervisor, Lieutenant John Garvulenski. ² On October 15, 1984, Garvulenski gave the plaintiff what he termed a final verbal warning. Despite this warning, the plaintiff was late four more times before December 12, 1984.

The two instances of tardiness that triggered the termination of the plaintiff's employment occurred on December 5 and December 8, 1984. On December 5, the plaintiff arrived at work more than two hours late. When asked for an explanation by his shift supervisor, he answered that he was late because he was working at his other job. On December 8, the plaintiff arrived at work more than four hours late, explaining that he had been drinking at a party the previous night. On Monday, December 10, 1984, the head of the defendant's security force, Captain Clarence Toler, brought the plaintiff's attendance record to David McGrath, director of security for the defendant. Toler recommended that the plaintiff's employment be terminated. McGrath, who made the final decision, decided that the plaintiff's termination was warranted due to the reasons given for his two most recent incidents of tardiness and his overall history of tardiness. Other relevant facts will be set forth as necessary.

The plaintiff's first claim is that the trial court improperly excluded his testimony regarding the statements allegedly made to him by two of the defendant's employees. The plaintiff was prepared to testify that in the early stages of the application process, he met with Frank Grismaula, who was employed in the defendant's personnel department. During their hour long meeting, the plaintiff asked Grismaula if the position was a union position. Grismaula stated that it was not, and further told the plaintiff that a union was not necessary because a progressive discipline policy was in place. In 1981, Lieutenant Albert K. MacDonald, one of the plaintiff's supervisors, told the plaintiff that he had no present problem with his attendance, and that if any problems arose in the future, progressive discipline would begin anew, with counseling, verbal warning and written warning.

The trial court found that the plaintiff's testimony regarding statements made by Grismaula and MacDonald was inadmissible because the plaintiff had failed to establish their authority to speak on behalf of the defendant. ³ The plaintiff asserts that the authority of Grismaula and MacDonald was indeed established, and that the statements were not hearsay or were admissible as admissions of a party opponent.

The mere existence of an employment relationship without more does not render statements of an employee admissible against an employer. Liebman v. Society of Our Lady of Mount St. Carmel, Inc., 151 Conn. 582, 586, 200 A.2d 721 (1964). "Before evidence can be admitted to show what an agent said, it must be established that the agent was authorized by the principal to make an admission." Robles v. Lavin, 176 Conn. 281, 284, 407 A.2d 959 (1978); Hartford National Bank & Trust v. DiFazio, 6 Conn.App. 576, 586, 506 A.2d 1069 (1986). The agency relationship must be proved by a fair preponderance of the evidence. Robles v. Lavin, supra; Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970). The plaintiff concedes that Grismaula's and MacDonald's statements, even if not hearsay, were not admissible if they lacked the authority to make the statements.

"Apparent authority must be derived not from the acts of the agent but from the acts of his principal. '[The] acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.' " Lettieri v. American Savings Bank, 182 Conn. 1, 8, 437 A.2d 822 (1980); Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn.App. 137, 139, 579 A.2d 133 (1990).

In support of the proffered testimony, the plaintiff offered evidence that Grismaula had interviewed him for a job with the defendant. The plaintiff, however, knew only that Grismaula worked in the defendant's personnel department, and did not know Grismaula's job title. To justify the admission of the statements by MacDonald, the plaintiff relied on the testimony of Toler that lieutenants, as supervisors, attempted to answer employees' questions concerning the defendant's policies by referring to the supervisors' policy guide or obtaining assistance from the personnel department. This was the sum total of evidence presented by the plaintiff in support of the proffered testimony. The record reveals that the plaintiff offered no evidence to establish that Grismaula or MacDonald had the actual authority to make statements binding on the defendant concerning its disciplinary policies. Likewise, the plaintiff failed to offer evidence concerning any acts or statements of the defendant that would serve to vest either Grismaula or MacDonald with the apparent authority necessary to bind the defendant by their statements.

"It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent an abuse of that discretion." Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); State v. Menzies, 26 Conn.App. 674, 685-86, 603 A.2d 419, cert. denied, 221 Conn. 924-25, 608 A.2d 690 (1992). We conclude that the trial court did not abuse its discretion in determining that Grismaula and MacDonald lacked the authority to bind the defendant, and therefore the exclusion of this testimony was proper.

The plaintiff also asserts that the trial court improperly excluded the testimony of David Oliver, another employee of the defendant. Oliver sought to testify that in 1985, after the plaintiff's termination, a supervisor told him that a progressive discipline policy had always been in effect for the security department. This testimony was excluded by the trial court on relevancy grounds.

"The trial court has broad discretion in determining the relevancy of evidence. State v. Alvarez, 216 Conn. 301, 309, 579 A.2d 515 (1990). Evidence is admissible if it has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787. State v. DeJesus, [194 Conn. 376, 381, 481 A.2d 1277 (1984) ]. State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986)." (Internal quotation marks omitted.) State v. Ireland, 218 Conn. 447, 455-56, 590 A.2d 106 (1991); Lombardi v. Groton, 26 Conn.App. 157, 163, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992). The court determined that this proffered testimony was not relevant, in part because the defendant did not have a strict policy regarding the distribution of information concerning any discipline policy. Consequently, the information allegedly given to Oliver was not necessarily the same as that given to the plaintiff, if any such information was given to the plaintiff at all. We conclude that the trial court's exclusion of this testimony was not an abuse of discretion.

The plaintiff next claims that the trial court improperly directed a verdict against him on the negligent misrepresentation count. "The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion.... On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff.... While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.......