On motion to amend process and pleadings, etc.
Drewen, J.c.c. (temporarily assigned).
Plaintiff sues to recover damages for disabling injuries alleged to have resulted from his exposure to poisonous fumes and substances while employed by New Jersey Erectors Corporation, an independent contractor, as a laborer, in work then being done by it at the chemical manufactory in Kearny known as the Martin Dennis plant. The period of the alleged exposure, as appears from the depositions, was from August 14 to September 15, 1950. The defendant named in the action is the Martin Dennis Company, a corporation of this State. The answer admits that defendant is a New Jersey corporation, but all other allegations of the complaint are denied. Plaintiff now moves to amend the process and pleadings herein by amending the name of the defendant to read "Diamond Alkali Co., doing business as the Martin Dennis Company," the underlying contention being that the defendant corporation provided only the name and semblance of ownership for the Kearny plant, the same being then actually owned and operated by the Diamond Alkali Company. It is from depositions taken and filed by the plaintiff that the facts to be recited are drawn. In the problem presented two corporations of this State will be dealt with, each bearing the corporate style of the defendant above-named, i.e. , the Martin Dennis Company, and the second of which is the defendant in this suit. The manner and sequence of their creation will be shown.
Of first importance in these considerations is the fact that for upwards of 35 years immediately preceding its dissolution on December 28, 1949, the first or earlier the Martin Dennis Company had owned and operated a chemical plant in Newark, or in Kearny (the plant here in suit), or at both locations at once, where it had engaged in the manufacture
and processing of chemical substances commonly known as chrome and chrome products. During the period stated the name of the said the Martin Dennis Company had become, in the judgment and appraisal of the Diamond Alkali Company, which succeeded to its control, a symbol or standard of commercial good will in the marketing of the products mentioned, sufficiently evident to induce Diamond Alkali to continue the exploitation of the Martin Dennis name after the dissolution, in the manner and by the means hereinafter described.
In March of 1948 all outstanding stock of the first the Martin Dennis Company had been acquired by the Diamond Alkali Company, a Delaware corporation, the business of the two companies being identical in all respects. On December 28, 1949, following its acquisition of the stock, the Delaware company, acting through its agents and representatives, caused the New Jersey company to be dissolved. Simultaneously with the dissolution, however, a certificate was filed for the incorporation in this State of a new or second the Martin Dennis Company, whose corporate purposes as declared in the certificate are identical with those of the first the Martin Dennis Company, and, as it would appear, identical also with those of the Diamond Alkali Company. The latter company has from the beginning owned all the stock of the second the Martin Dennis Company, the present defendant, and the same persons are the officers and directors of both companies. On August 17, 1950 the Martin Dennis Company (in dissolution) made and executed to the Diamond Alkali Company, by the surviving directors as trustees in dissolution, a deed of conveyance, effective as of December 31, 1949, purporting to vest in the Alkali Company title in fee simple to lands, tenements and appurtenances which include those constituting the Kearny plant whereat the alleged injury occurred. The afore-mentioned trustees in dissolution are likewise the officers and directors of the Delaware corporation.
Now, what is the relation between the present the Martin Dennis Company, defendant herein, and Diamond Alkali
Company? To begin with, in addition to the identity of their officers and directors, their statutory agent is the same, the Corporation Trust Company in Jersey City, the Martin Dennis Company has no other office save that designated by the address 300 Union Commerce Building, Cleveland, Ohio, which is also the office of Diamond Alkali Company. Summons and complaint in the case before us were served on the Corporation Trust Company, as statutory agent, and thence transmitted and received by the deposing witness Carmichael, secretary of the defendant company and of the Diamond Alkali Company, at the Cleveland office of these companies. It is further established by the proofs that the existing the Martin Dennis Company has no bank account, and has engaged in no business since its incorporation. It shadows forth as a corporate simulacrum. The deposing witness Evans, president of both companies, testifies that "it (Martin Dennis) is inactive, dormant and has never done any business." Nevertheless, the proofs show that as between it and the Alkali Company there has been and still is a corporate fusing and cofunctioning, under the merged dominance and control of Diamond Alkali, that is essential to the rationale of this decision. What purpose in the business affairs of Diamond Alkali Company does the subjugated New Jersey corporation serve? The answer is provided in the depositions of the aforementioned Evans and Carmichael.
The following is from the testimony of Evans, the dual president:
"Q. What were the reasons (for incorporating the second The Martin Dennis Company)? A. The reasons were to protect the Martin Dennis name and to prevent anybody else from capitalizing on the use of that name * * *. If the name had been used by others we felt it might result in our losing some business.
Q. When you say 'we felt' whom do you mean? A. Diamond Alkali Company.
Q. Now when did the Diamond Alkali Company take actual physical possession of the plant in Kearney that was formerly owned by The Martin Dennis Company? A. In the very early part of 1950.
Q. Was the plant in operation at that time? A. I ...