Dale v. Safeway Stores, Inc., 20131

• Decision Date: 22 July 1963
• Docket Number: No. 20131,20131
• Citation: 152 Colo. 581,383 P.2d 795
• Parties: Alma DALE and William Dale, Plaintiffs in Error, v. SAFEWAY STORES, INC., a Maryland corporation, and Larry Deuschle, Defendants in Error.
• Court: Colorado Supreme Court

Page 795

383 P.2d 795

152 Colo. 581

Alma DALE and William Dale, Plaintiffs in Error, v. SAFEWAY STORES, INC., a Maryland corporation, and Larry Deuschle, Defendants in Error.

No. 20131.

Supreme Court of Colorado, In Department.

July 22, 1963.

Lawrence Litvak, Denver, for plaintiffs in error.

Wood, Ris & Hames, Thomas T. Crumpacker, Denver, for defendants in error.

McWILLIAMS, Justice.

Upon trial a jury returned a verdict in favor of Alma Dale against the Safeway Stores, Inc., and one of its store managers, Larry Deuschle, in the amount of $2,750, the litigation having its genesis in a fall allegedly suffered by Mrs. Dale while shopping in a Safeway store. At the same time the jury also returned a verdict for Alma's husband--William--against the defendants, but determined that he had suffered no damage in connection with his alleged loss of consortium and companionship.

Subsequent to the return of the two verdicts, but before entry of judgment, the following motions were filed by the litigants:

1. The Dales filed a 'Motion for New Trial' wherein they sought a new trial on the issue of damages only or, in the alternative, a new trial on all issues;

2. The Dales also filed a 'Motion to Modify Verdict or for New Trial as to Damages' wherein they sought additur or, alternatively, a new trial on the issue of damages; and

3. The defendants filed a 'Motion to Set Aside Verdict and for Judgment Notwithstanding Verdict.'

Each of these motions was denied, whereupon the trial court directed entry of judgment. Within ten days thereafter the Dales filed a second 'Motion for New Trial', again seeking a new trial--but only as to the issue of damages, and as reason therefore alleged that subsequent to trial Alma Dale had 'undergone additional surgery for injuries received at the time of her fall in the defendants' store.' This motion after extended argument was granted, although the court in so many words reserved the right to later determine whether the new trial would be on all issues or the issue of damages only. In this regard the record discloses that it was the expressed hope of the trial judge that counsel for the Dales and the defendants could themselves voluntarily agree upon the scope of the new trial. To no one's surprise, however, opposing counsel could not arrive at agreement in regard thereto. Rather, the defendants immediately filed a 'Motion re New Trial' wherein they asked the court to vacate its order granting a new trial or to declare that the new trial would be on all issues in controversy between the parties.

After much more argument of counsel the trial court by appropriate order directed that the new trial be on all issues, but suspended this order to permit the Dales even further opportunity to file a brief in opposition thereto--the Dales still being desirous of a new trial, but only on the one issue of damages. After further hearings the court finally determined that the new trial would be 'on all issues in the case and not on the issue of damages only.'

At this juncture it is opportune to observe that though neither the Dales nor the defendants were in accord with the trial court in its various and sundry rulings on the several motions filed by them, nevertheless neither party elected to stand on the record as made, but each thereafter participated in the second trial of this matter.

The outcome of the retrial was even less satisfactory to the Dales than that of the original trial, the jury this time returning verdicts in favor of Safeway and its store manager. The retrial, incidentally, was before a judge other than the judge who presided over the first trial and who had ruled on the various motions in connection therewith. The Dales' motion for new trial and for judgment notwithstanding the verdict of the jury was denied and judgment of dismissal entered. The Dales are here by writ of error, seeking reversal of this judgment dismissing their respective claims.

The Dales initially contend that the trial court erred in denying their motion for additur filed by them immediately after the first trial and in later directing that the second trial thereof should be on all issues, when they had sought a new trial only as to the issue of damages. In our view the Dales having participated in the second trial of this matter thereby waived their right to a review of these several rulings of the trial court. In support of this conclusion, see Chartier et al. v. Winslow...