Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
This appeal involves the question of whether or not defendant was plaintiff's employer at the time plaintiff suffered serious injuries as the result of being involved in an accident.
Plaintiff, a crane operator, lost an eye during the course of his employment when a cable on the crane snapped and lashed him across the face. He filed a claim under the Workmen's Compensation Act for his injuries against Frank Naples & Sons as his employer and received an award. This present action seeks damages in tort for the same injuries and charges that the crane was owned by Globe Trucking Co., the defendant herein, and was leased to
plaintiff's employer in an unsafe and defective condition, as the result of which an accident happened and plaintiff suffered serious injuries. Defendant filed an answer admitting ownership of the equipment, denied negligence, and said that plaintiff was its employee at the time of the accident, and having received a workmen's compensation award for his injuries, could not maintain this suit in tort against his employer.
At the trial plaintiff testified that when his union sent him to the job it told him he was working for Frank Naples & Sons. He stated that his bosses were Frank Naples, Sr., Frank Naples, Jr., and James Naples. He knew of the name Globe Trucking Co. and admitted that the crane which he operated had both the names Frank Naples & Sons and Globe Trucking Co. on it. He said that some of his pay checks were from Frank Naples & Sons, and others were from Globe Trucking Co. Plaintiff also testified to his accident and, without going into detail, it is sufficient to note that a jury question of negligence and liability on defendant's part was made out if this action be otherwise maintainable. It was undisputed that plaintiff made a claim under the Workmen's Compensation Act against Frank Naples & Sons for his injuries and received an award. It does not appear that the identity of the employer was an issue in the compensation case.
The legal theory on which plaintiff bases the present action is that Globe Trucking Co. and Frank Naples & Sons were two legal entities -- two separate partnerships. Plaintiff therefore asserts the right to receive a workmen's compensation award for his injuries against one as his employer, and also to sue the other in tort as the owner of the crane, the defective condition of which allegedly caused these same injuries.
The defendant, in opposition to plaintiff's claim, proved these facts. Frank Naples had been in business for many years under the name of Globe Trucking Co. His equipment, which was financed, was registered under the same
name. In 1951 he brought his two sons, Frank, Jr. and James, into the business as partners, and on December 1, 1951 they executed a written partnership agreement which provided in part as follows:
"The said parties above named have agreed to become co-partners in business, and by these presents do agree to be co-partners together under or by the names or firm names of Frank Naples & Sons and Globe Trucking Co. with principal offices to be located at No. 1 Dawson Avenue, in the City and County of Passaic and State of New Jersey."
Thereafter two trade name certificates were filed in the County Clerk's office, one of which lists Frank Naples, Frank Naples, Jr. and James Naples as trading as Frank Naples & Sons, and the other lists the same persons as trading as Globe Trucking Co. The partnership, using both names, operated a single business from the one office.
Frank Naples, Sr. testified that originally the partnership had intended to use the family name and operate thereunder. It was ascertained however that the registration of the equipment could not be changed because of the financing. In addition, Globe Trucking Co. was an established name in the business and had considerable ...