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05/13/63 FOOD FAIR STORES CORPORATION v. JOHN JAMES

May 13, 1963

FOOD FAIR STORES CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, DEFENDANT BELOW, APPELLANT,
v.
JOHN JAMES VARI, PLAINTIFF BELOW, APPELLEE



Appeal from the Superior Court of the State of Delaware in and for New Castle County.

Southerland, Chief Justice, Wolcott, Justice, and Marvel, Vice Chancellor, sitting.

The opinion of the court was delivered by: Wolcott

WOLCOTT, Justice

This is an appeal by the defendant from the denial of its motion for summary judgment and from an order granting leave to the plaintiff to amend the complaint to change the defendant.

The action is one for personal injuries suffered by the plaintiff on September 28, 1959, on premises located at 2005 Pennsylvania Avenue in Wilmington, said premises being occupied by a Food Fair Store.

On September 7, 1960, the plaintiff instituted suit against Food Fair Stores Corporation. Service was obtained September 13, 1960, on the resident agent of Food Fair Stores Corporation. On October 3, 1960, the defendant filed its answer alleging that it neither owned nor controlled the premises on which the plaintiff was injured. At the same time an affidavit of non-agency was filed.

On October 17, 1960, the defendant filed its motion for summary judgment. The motion for summary judgment was scheduled for argument and, on November 16, 1960, the plaintiff filed his motion to amend the complaint. On October 24, 1962, by order, defendant's motion for summary judgment was denied and plaintiff's motion to amend his complaint was granted. From this order defendant appeals.

It appears from the affidavits filed that the corporation operating the Food Fair Store at which plaintiff sustained his injuries was not the corporation sued, but was in fact Food Fair Stores, New Castle, Inc. It further appears that there are in fact nine corporations formed under the Delaware Corporation Law including within their names the words 'Food Fair'. One of these is Food Fair Stores Corporation, the defendant actually sued.

It further appears that all of these corporations are part of a chain of stores, the parent corporation of which is Food Fair Stores, Inc., a corporation of the State of Pennsylvania. Both Food Fair Stores, New Castle, Inc. and Food Fair Stores Corporation have the same resident agent in Delaware, and both have offices located at the same address in Philadelphia, Pennsylvania. In addition, both corporations have at least two individuals who are officers of both corporations.

It appears from the affidavits that plaintiff's counsel, prior to the institution of suit, had correspondence concerning the possible settlement of this claim, which correspondence was carried on in behalf of the defendant on the letterhead of Food Fair Stores, Inc. In addition, an insurance adjuster representing Food Fair Stores, Inc. called upon the plaintiff's counsel to discuss the case. In an affidavit filed by this adjuster he avers that in early September of 1960, in the office of plaintiff's counsel, he advised him that the wrong corporation had been named as a party defendant.

In an affidavit filed by plaintiff's counsel, it is averred that prior to the institution of this action he inquired by telephone of the Secretary of State as to the proper corporate name of defendant, and was advised that there was only one Delaware corporation bearing the words 'Food Fair' in its name which was Food Fair Stores Corporation. He also avers that he discussed this question with the insurance adjuster but that it was not until the defendant's affidavit of non-agency was filed that he wrote the Corporation Department requesting information as to the names of all corporations registered in Delaware with the words 'Food Fair' in their names. In response to this written request he was informed of the nine existing Delaware corporations bearing the words 'Food Fair' in their names.

It appears that at the time of the plaintiff's injury a retailer's license had been issued to Food Fair Stores, New Castle, Inc., a copy of which was displayed according to law in the premises at 2005 Pennsylvania Avenue in Wilmington.

The sole question presented to us is whether or not a plaintiff may, by amendment to his complaint, add or substitute a new party defendant at a time when the Statute of Limitations would bar the bringing of an original action against such defendant.

Defendant relies on Hackett v. Bethlehem Steel Co., 5 W.W.Harr. 317, 165 A. 332, in which a similar motion to substitute as a defendant Bethlehem Steel Company, a corporation of Delaware, for Bethlehem Steel Company, a corporation of Pennsylvania, which had erroneously been named as a party defendant, was denied. The court in the Hackett case reviewed the authorities and concluded that the amendment should be refused since the plaintiff was attempting to substitute a new party defendant ...


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