Opinion
Quiat & Quiat, P.C., Alan H. Bucholtz, Denver, for plaintiff in error.
V. G. Seavy, Pueblo, V. G. Seavy, Jr., Denver, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error, operator of a grocery supermarket, was the defendant in the trial court in an action in which plaintiff obtained a personal injury judgment in the amount of $2,000. Defendant seeks reversal of the judgment and assigns numerous errors.
Defendant argues that the judgment must be reversed because defendant was erroneously designated in the action as 'Miller's Super Markets.' Defendant contends that its true corporate name is 'National Tea Co.,' doing business as 'Miller's Super Markets, Inc.' Plaintiff's evidence established that defendant, in its newspaper advertising, used the name 'Miller's Super Markets' for the store in which plaintiff was injured. C.R.S. 1963, 141--2--1(4) provides:
'Any corporation doing business under an assumed name shall be liable in connection therewith to the same extent and in the same manner as if such business were transacted under its true corporate name. Such corporation may be sued in connection therewith either under its true name or such assumed name.'
The designation of defendant as 'Miller's Super Markets,' an assumed name used by defendant in connection with its business, was not error.
Defendant claims that the evidence was insufficient to support a verdict in favor of plaintiff, and that plaintiff was contributorily negligent as a matter of law. In the trial court defendant moved for a directed verdict on these grounds. Plaintiff's evidence at the trial established that she had been a regular customer at defendant's store for several years prior to the accident. On the day she was injured, she went to the store to cash her husband's check. She cashed the check and, as she stepped away from the check cashing booth, she felt a sharp pain in her leg. She looked down and saw that she had cut her leg near the ankle on a sharp piece of metal, which was part of a display rack maintained by defendant. The wound was severe; she was taken to a hospital where the wound was closed with twenty-two stitches. She remained under a doctor's care for several months. When the wound healed, plaintiff was left with a permanent scar. The owner of business premises has a duty to use reasonable care to keep the premises used by a business invitee in a reasonably safe condition. King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006. There is sufficient evidence in the record to support a finding by the jury that defendant's display rack was in a dangerous and defective condition; that defendant knew or should have known of this condition; and that, in maintaining the display rack in such a dangerous condition, defendant breached its duty to use reasonable care to maintain its premises in a reasonably safe condition.
The issue of plaintiff's contributory negligence was, in the circumstances of this case, properly submitted to the jury. Only in the clearest of cases, where the evidence is undisputed and reasonable minds could reach but one conclusion, is the question of contributory negligence to be taken from the jury and be determined as a matter of law by the court. See Reidesel v. Blank, 158 Colo. 340, 407 P.2d 30.
At the close of all the evidence, defendant requested that the jury be taken to its store and be permitted to examine the premises where the accident had occurred. Plaintiff's attorney stated that he felt it was unnecessary, but that he had no 'violent objection' to the motion. R.C.P. Colo. 47(k) states:
'If in the opinion of the court it is proper for the jury to see or examine any property or place, it may order the jury to be conducted thereto * * *.'
The granting or denial of the motion was within the court's discretionary powers and the denial of the motion in the circumstances of this case was not error.
The court instructed the jury that plaintiff was a business invitee and then gave a proper instruction on the legal duty of an owner of business premises to an invitee. The defendant argues that if plaintiff came into the store for the purpose of cashing a check, she was a 'licensee' and the court should not have instructed the jury that she was an 'invitee.' The defendant operated its store to sell merchandise, and in connection with this business provided a check cashing service for its customers. In our opinion, the plaintiff was an invitee whether she was in the store to cash a check or to buy groceries, and the court was not in error in instructing the jury that plaintiff was an invitee as a matter of law.
Defendant also contends that the verdict of $2,000 was excessive. Although plaintiff proved only $69 in medical expenses, she was under her doctor's care for several months after the accident, suffered pain and discomfort, and has a permanent scar on her leg. The jury's verdict is not so grossly or manifestly excessive as to require appellate interference. Gibbons v. Choury, Colo., 455 P.2d 649.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.