World Fire & Marine Ins. Co. v. Alliance Sandblasting Co.

• Decision Date: 05 March 1927
• Parties: WORLD FIRE & MARINE INS. CO. v. ALLIANCE SANDBLASTING CO.
• Court: Connecticut Supreme Court

136 A. 681

105 Conn. 640

WORLD FIRE & MARINE INS. CO. v. ALLIANCE SANDBLASTING CO.

Supreme Court of Errors of Connecticut.

March 5, 1927

Appeal from Court of Common Pleas; Hartford County; Thomas J. Molly and Arthur E. Howard, Jr., Judges.

Action by the World Fire & Marine Insurance Company against the Alliance Sandblasting Company to recover for damage by fire alleged to have been caused by defendant's negligence. A plea in abatement was overruled, and the jury returned a verdict for the defendant. The court set aside the verdict as against the evidence, and defendant appealed from such ruling and from the ruling on the plea in abatement. Error, and cause remanded with directions.

Morris Blumer, of Hartford, for appellant.

George H. Day and Walfrid G. Lundborg, both of Hartford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HINMAN, J.

On April 13, 1925, the Alliance Sandblasting Company contracted for the removal of the paint from a house in Hartford, owned by one Merrow. The contract called for the use of lime and caustic soda, but, this method proving ineffective, it was subsequently agreed by the parties that the paint should be removed by burning with torches. On April 21st, while two of defendant's employees were engaged in the work, using kerosene torches, a fire broke out in the roof of the building above the point where the men were working, and the premises were damaged thereby. The plaintiff, in consequence, paid the owner for fire loss under a policy written by it, and, under subrogation to the owner subsequently brought this action to recover the amount so paid from the defendant, on the ground that the fire was caused by negligence in and pertaining to the use of the torches.

The Alliance Sandblasting Corporation is a New York corporation and does no business outside the state of New York; the Alliance Sandblasting Company is the trade-name under which one Julius Goodman does business, which trade-name is registered in New York, but not in Hartford. Both occupy the same office in New York City. It was the latter concern which contracted with Merrow. The writ was originally directed against " the Alliance Sandblasting Company, a corporation of New York, having an office and carrying on business in the city of Hartford." Service was made, under an order of notice, by registered mail, addressed to the company at its New York address, and Goodman is found to have had actual notice of the pendency of the action.

After a plea in abatement filed by the corporation had been overruled, the plaintiff was permitted to amend its writ by striking out the name of the defendant as it originally appeared, and substituting therefor Julius Goodman, doing business under the tradename of the Alliance Sandblasting Company. Goodman then entered a plea in abatement and to the jurisdiction claiming that this change constituted a substitution of parties, and that the garnishment made under the original writ and upon which jurisdiction depended was not valid as against Goodman. The overruling of this plea is made the ground of one of the two reasons of appeal, but the action of the court was correct. The dealings had been with, the moneys garnished belonged to, and the cause of action, if any, was against the Alliance Sandblasting Company. The identity of the defendant was originally and at all times the same in the mind of the plaintiff, and the entity is one and the same whether it be a contractual entity (a partnership), an artificial entity (a corporation), or a personal entity (an individual). Its name is the same, and its liability is the same, and enforceable by the same remedies. The plaintiff's mistake was not as to the entity itself--not as to the party sued--but in describing what kind of an entity the defendant was. It sued the proper party, but in so doing misdescribed that party, not in respect to name, but solely as to status, as being an artificial instead of a personal entity. The averment that the Alliance Sandblasting Company was a corporation was no part of the name of that company. The change made by the amendment did not affect the identity of the party sought to be described, but merely made correct the description of the real party sued. It did not substitute or bring in a new party. Goldstein v. Peter Fox Sons Co., 22 N.D. 636, 135 N.W. 180, 40 L.R.A. (N. S.) 566; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 So. 871, 138 Am.St.Rep. 73; Ex parte Nicrosi, 103 Ala. 104, 15 So. 507; Western Ry. Co. v. Sistrunk, 85 Ala. 356, 5 So. 79. " The effect given to such a misdescription usually depends upon the question whether it is interpreted as merely a misnomer or defect in the description, or whether it is deemed a substitution or entire change of party; in the former case an amendment will be allowed, in the latter it will not be allowed." Annotator's note to Goldstein v. Peter Fox Sons Co., supra, 40 L.R.A. (N. S.) 567.

The amendment was properly allowed under section 5664 of the General Statutes. Hawthorne Sash & Door Co. v. New London, 99 Conn. 672, 676, 122 A. 658. The amendment related back to the commencement of the action. La Barre v. Waterbury, 69...