Thomas v. Colvin
| Citation | 592 P.2d 982 |
| Decision Date | 16 January 1979 |
| Docket Number | No. 50209,No. 1,50209,1 |
| Parties | Johnnie E. THOMAS, Appellee, v. Bennie J. COLVIN, and R. A. Coker, d/b/a Sherwood Motors, Appellants |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Oklahoma County; William S. Myers, judge.
AFFIRMED.
Smith, Smith & Vaughan by Fred Vaughan, Jr., Oklahoma City, for appellee.
Burger, Wells, Duckworth & Coyle by Gary F. Duckworth, Oklahoma City, for appellants.
Does an individual who does business as a sole proprietor under one or several names remain one person, personally liable for all his obligations?
Jury returned verdict in conversion action against defendant-appellant, R. A. Coker, d/b/a Sherwood Motors, for $1,625 actual damages and $17,500 punitive. Defendant appeals, contending that trial court erred in overruling his demurrer to plaintiff's evidence.
Plaintiff's action was premised on defendant's wrongful repossession of plaintiff's automobile. The car had been purchased from defendant on a credit plan, and the resulting security agreement and promissory note were assigned to B.F.T.C. Finance Corporation, of which Coker is president. Evidence established that Coker called Bennie Colvin in Oklahoma City and hired him to repossess the car. This was done even though plaintiff was not in default on the note.
Defendant argues that trial court erred since evidence failed to establish that Colvin was the agent of "R. A. Coker, d/b/a Sherwood Motors." Defendant treats this nomenclature as a separate entity arguing that since Coker was not acting on behalf of Sherwood Motors when he hired Colvin and directed him to convert plaintiff's car, he is not liable. Coker argues that since he was not sued "individually" he is not responsible for any individual actions apart from the operation of Sherwood Motors. Plaintiff argues correctly that even though Colvin may not have been the agent of "Sherwood Motors" in repossessing the car, Coker's participation in the commission of this tort as an individual and as agent of B.F.T.C. makes him liable. Rogers v. Brummett, 92 Okl. 216, 220 P. 362 (1923).
Defendant treats this case as if the use of the "d/b/a" designation limited the capacity in which he could be liable. No authority is cited to support this contention that a separate entity is created by this nomenclature. The Oklahoma Supreme Court decided in National Surety Co. v. Oklahoma Presbyterian College for Girls, 38 Okl. 429, 132 P. 652 (1913), that naming a sole proprietor defendant under his trade name was the same as naming the defendant individually.
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State v. Ivanhoe
...Duval v. Midwest Auto City, 425 F.Supp. 1381, 1387 (D.Neb.1977), aff'd, 578 F.2d 721 (8th Cir.1978). See also Thomas v. Colvin, 592 P.2d 982, 983 (Okla.App.1979). Because defendant and his sole proprietorship are the same entity in fact and law, see McCullough, 757 F.2d at 144, the indictme......
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...(Jan. 9, 2020) (quoting Lewis v. Am. Gen. Assurance Co. , 2001 WL 36160929, at *2 (W.D. Okla. Feb. 26, 2001) ).20 Thomas v. Colvin , 592 P.2d 982, 983 (Okla. Civ. App. 1979) (citing Nat'l Surety Co. v. Okla. Presbyterian College for Girls , 38 Okla. 429, 132 P. 652 (1913) ).21 See Green , 7......