Merriman v. Standard Grocery Co.
| Decision Date | 04 December 1968 |
| Docket Number | Nos. 20768,No. 2,20767,s. 20768,2 |
| Citation | 242 N.E.2d 128,143 Ind.App. 654 |
| Parties | Irene MERRIMAN, Appellant, v. STANDARD GROCERY COMPANY, Inc., Appellee. Howard MERRIMAN, Appellant, v. STANDARD GROCERY COMPANY, Inc., Appellee |
| Court | Indiana Appellate Court |
Richard H. Crokin, Indianapolis, Frazier & Crokin, Indianapolis, of counsel, for appellants.
Robert C. Riddell, D. Maxwell Gray, Indianapolis, for appellee; Locke, Reynolds, Boyd & Weisell, Indianapolis, of counsel.
This appeal arose as the result of two actions, one brought by appellant Irene Merriman, and the other by appellant Howard Merriman. The two causes of action were consolidated for the purpose of trial.
Appellant Irene Merriman brought her action to recover damages for personal injuries sustained in a fall on the floor of a grocery store; and appellant Howard Merriman brought his action as the husband of the appellant, Irene Merriman, to recover damages for medical expenses and loss of services caused by and arising out of his wife's fall. The appellee, Standard Grocery Company, Inc., filed a motion for summary judgment supported by affidavit, alleging therein that the named defendant did not own or lease the store in which the accident was alleged to have occurred. The court sustained appellee's motion for summary judgment; and did not permit the plaintiffs-appellants to amend their complaints to conform with the evidence, which revealed that Standard Grocery Company, Inc. was not the proper party defendant; and, as the evidence disclosed, to name National Tea Company (an Illinois corporation) as the defendant, rather than Standard Grocery Company, Inc.
Both appellants and appellee disagree as to the precise issue presented in this appeal, but that disagreement can be resolved by a review of the proceedings that transpired prior to the court's granting of appellee's motion for summary judgment. The record shows the questions presented to be as follows: Did the trial court abuse its discretion in not allowing the appellants to amend their complaints to name a new party defendant and further, in granting appellee's motion for summary judgment in light of the following?:
The appellee, Standard Grocery Company, Inc. (hereinafter referred to as Standard) is a wholly owned subsidiary of National Tea Company (an Illinois corporation) (hereinafter referred to as National). Standard and National share the following corporate officers: president, two vice-presidents and a secretary-treasurer. Appellants were led to believe by public notification consisting of signs, advertisements, etc. that the accident occurred in a 'Standard Food Store'. Standard Grocery Division of National Tea Company is a part of National which operates retail stores in this state under the following names: Standard Food Stores, Del Farm, Big 'D' Stores, National Food Stores, and Arlington Markets. National has not filed a certificate in the office of the Johnson County Recorder disclosing that it was doing business under an assumed business name as required by Burns' Stat.Ann., § 50--201 (1968 Repl.), which reads in part as follows:
'50--201. Partnerships, persons, businesses and corporations--Names--Filing certificates--Records and index--Dissolution notice--Cost of recording--Copy of certificate to secretary of state.--Except as otherwise provided in section 2 (§ 50--202) of this act, every person, firm or partnership, conducting or transacting business in this state under any name, designation or title other than the real name or names of the person or persons conducting or transacting such business, whether individually or as a firm or partnership, and every corporation conducting business in this state under any name, designation or title other than the name of such corporation as shown by its articles of incorporation, or amendment thereto, on file with the secretary of state of Indiana, shall file for record, in the office of the recorder of each county in which a place of business or an office of such person, persons, firm or partnership, or corporation is situated, a certificate stating the assumed name or names to be used, and, in the case of a person, persons, or firm or partnership, the full name and the residence address of each person engaged in or transacting such business, or, in the case of a corporation, the full name and the address of the principal office in this state of such corporation. The recorder shall keep a record of such certificates, and shall keep an index thereof showing, in alphabetical order, the names of such persons, the names of all the members of the firms or partnerships and the corporate names of the corporations having such certificates on file in his office and the respective assumed names which they intend to use in carrying on their respective businesses as shown by such certificates. * *
'Any corporation subject to this act shall, in addition to filing the certificate provided for above, also forthwith file with the secretary of state of Indiana a copy of each such certificate, duly certified by the proper county recorder as a true copy of the certificate as on file in the office of such recorder. (Acts 1909, ch. 151, § 1, p. 358; 1949, ch. 61, § 1, p. 173; 1965, ch. 241, § 1, p. 618.) (Emphasis supplied.)
Appellee Standard did not own or lease the store in which the accident occurred. The Standard Food Store where appellant fell was leased from the Wilgro Realty Co. by National.
This court will take judicial notice of the public records filed in the office of the secretary of state of Indiana, and from an examination of these records it is disclosed that, as of the date these proceedings were instituted, National had not complied with the provisions of the statute hereinabove set out.
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