Hayes v. Risk

• Decision Date: 02 November 1967
• Citation: 255 Cal.App.2d 613,64 Cal.Rptr. 36
• Court: California Court of Appeals Court of Appeals
• Parties: Charles Ed HAYES, Plaintiff and Appellant, v. Ruth Katherine RISK, Defendant and Respondent. Civ. 30149.

Page 36

64 Cal.Rptr. 36

255 Cal.App.2d 613

Charles Ed HAYES, Plaintiff and Appellant, v. Ruth Katherine RISK, Defendant and Respondent.

Civ. 30149.

Court of Appeal, Second District, Division 3, California.

Nov. 2, 1967.

As Modified Nov. 30, 1967.

Joseph W. Jarrett and Frank W. Woodhead, Los Angeles, for plaintiff and appellant.

Thompson & Oppen and James J. Oppen, Van Nuys, for defendant and respondent.

FRAMPTON, Associate Justice pro tem. ^*

Appeal by Hayes from a judgment on the pleadings and from an order dissolving a preliminary injunction, and appeal by Risk from order reinstating preliminary injunction pending appeal.

The history of the litigation which spawned the filing of the action in which these appeals are taken is as follows: On February 9, 1961, Ruth Katherine Risk, hereinafter referred to as Risk, filed an action in the Superior Court of Los Angeles County against Charles Ed Hayes, hereinafter referred to as Hayes, and one Howard Baldwin. This action was numbered NWC 568 in the files of the court. In this action, Risk sought damages for personal injuries and property damage claimed to have been sustained in an automobile accident which occurred in the City of Los Angeles, and which involved a car driven by Hayes and owned by Baldwin. Hayes, it was claimed, was insured under a policy issued by American Motorist Insurance Company, hereinafter referred to as American, with liability thereunder limited to the sum of $10,000. On February 21, 1961, Hayes was served with the complaint and summons in this action. No appearance was made by him in response to this service. On April 18, 1961, Risk filed her first amended complaint in this action and summons was issued thereon. The superior court file shows that the first amended complaint alleges that the accident occurred at a different time and at a different location than that alleged in the original complaint. The record shows that some effort was made to locate and serve Baldwin. This effort proved fruitless and Baldwin was never served with either the original complaint or the first amended complaint.

On June 8, 1962, James J. Oppen, one of the attorneys for Risk, filed an affidavit in support of an order that the service of summons on the first amended complaint be made on Hayes by the publication thereof. This affidavit had attached to it and incorporated in it a return of service by a deputy marshall of the Municipal Courts of Los Angeles County, and the affidavits of Leo J. Beck and Clifford House, private detectives who had been employed by Oppen. Hayes had been named in the original complaint and the first amended complaint as 'Charles E. Hayes.' The affidavit of Oppen sought an order for service of the summons on the first amended complaint by publication thereof upon the grounds that after the exercise of due diligence Hayes could not be found within the state, and that Hayes was concealing himself to avoid the service of summons. Oppen deposed that after the marshall was unable to obtain service, he (Oppen) checked with the Department of Motor Vehicles with respect to an address for Hayes and was given an address which corresponded with the one at which Hayes had been served with the original complaint and summons. The return of service on the original complaint, contained in the superior court file, shows service to have been made on Hayes on February 21, 1961, at '7260 Valaho Blvd., Tujunga, California.' The return of service on the first amended complaint, attached and made a part of Oppen's affidavit, discloses that the deputy marshall could not find Hayes at the address shown as '7361 Foothill, Tujunga,' or at the address shown as '7260 Valaho, Tujunga.' Oppen stated further in his affidavit that he then contacted a representative of American who advised him that Hayes was employed in a Flying A service station on Foothill Boulevard in the Sunland-Tujunga area, whereupon Oppen personally visited every such named station between the City of Pasadena and the City of San Fernando, and talked to the operators of such stations at length, but could find no one who knew Hayes or who could furnish any clue as to his whereabouts.

Oppen's affidavit incorporated a complaint, in the form of a letter, made to the office of the Insurance Commissioner under date of August 28, 1961, and a letter of the same date addressed to American. The contents of these documents reveal generally that Hayes had been served with the original complaint but could not be found for service of the amended complaint; that Hayes had been booked upon the charge of violation of section 23101, Vehicle Code (felony drunk driving) arising from the accident in which Risk sustained her injuries; that a representative of American had interviewed Hayes while he was incarcerated on that charge; that a copy of the amended complaint and summons thereon had been sent to American by Oppen on August 1, 1961, but American had refused to defend on the ground that Hayes had refused to cooperate with his insurer; that inasmuch as Hayes was booked on a felony drunk driving charge after rear-ending Risk, there was no question of liability in the case, and that Risk's injuries were severe; that Oppen offered a settlement of $9,500 on the assumption that the policy limits were $10,000; that the offer was made for the express purpose of reducing the claim to judgment and if not accepted, to thereafter pursue any excess judgment which might be obtained in the action against Hayes, against American; that Oppen would not seek a default judgment until American had a reasonable opportunity to defend.

The affidavit of Leo J. Beck discloses that he was a duly licensed and bonded private investigator and had been employed on January 10, 1962, by the law firm of Thompson, Sherbourne & Oppen to locate Hayes; he was given an address at 9845 Sunland Boulevard in Sunland, California which he checked and was advised by the handlady at this address that Hayes was unknown there; that he checked with several of the neighbors in the area but Hayes was unknown to any of them; he checked with the Department of Motor Vehicles and found one automobile listed for 1960, but no renewal for 1961 or 1962; he checked the drivers' license division and received the report that Hayes' license had been suspended; he received an address for Hayes from this source at 7361 Foothill Boulevard, Tujunga; he checked this address, but the landlady there, as well as the neighbors, knew nothing about Hayes; he checked the records of the County Assessor's office but found no listing under Hayes' name; he also checked with the Retail Merchants Credit Association and the Consumer Credit Corporation, and found that neither agency had any record relating to Hayes; he then checked the criminal records and found the following records relating to Hayes: 'Subject had 39 drunk arrests; in 1935 he was in jail in the State Penitentiary in North Carolina; in 1936, he was also sentenced to the State Penitentiary (specific charge unknown); in 1952, subject was arrested for grand theft auto in New York and was sentenced to from one to five years in a New York penitentiary; in 1954, subject was convicted of parole violation; in 1960, there was a drunk driving charge; in June, 1961, there was a common drunk charge; on July 31, 1961, there was a common drunk charge; on August 21, 1961, another common drunk charge.

'The last address which I was able to obtain from the police records was 4587 Mulberry in Riverside, California, which was the address to which subject was released after his 30-day sentence on August 21, 1961.

'He was described as a 'common drunk and transient."

The affidavit of Clifford House discloses that he is a licensed private investigator and was employed by Oppen to search for and locate Hayes; that on April 15, 1962, in the course of this employment, he went to the office of the Sheriff of Riverside County and checked the records there but found no record of Hayes; he then checked the records of the Police Department of the City of Riverside and found a record of arrest on Hayes made on April 28, 1961, for being drunk; this record disclosed an address for Hayes at 3471 Fifth Street, Riverside; a check at this address produced the information that the landlord had evicted Hayes from the premises at about the same time of his arrest upon the drunk charge above related, and that the landlord had no knowledge of Hayes' present whereabouts; House then checked the address at 4587 Mulberry, Riverside, where he was informed that Hayes at one time visited a Mr. Paul Weaver, a former tenant at this address; House was referred to the Riverside Hotel for possible information concerning Hayes or Weaver; a check of the Riverside Hotel produced no record of either Hayes or Weaver; House then checked several bars in the area, and at the Imperial Bar, at 8th and Market Streets, he was informed that both Weaver and Hayes were known there but had not been seen there for some time, and no information was available as to the whereabouts of either of them; House then left his business card at this bar, and on April 16, 1962, he received a collect telephone call from Weaver who had resided at 4587 Mulberry Street in Riverside; Weaver stated that he had not seen Hayes for over a year and when House questioned Weaver at length concerning Hayes, Weaver stated 'he thought he might have left to see some friends out of state or else he could have drank himself to death.'

The superior court file also discloses that a summons on the first amended complaint was, on January 29, 1962, placed in the hands of the Sheriff of Riverside County for service upon Hayes, and that on March 14, 1962, the sheriff made his return that Hayes was unknown at the address '4587 Mulberry, Riverside, California.'

Based upon this showing, the trial court, on June 8, 1962, ordered service of the summons on the amended complaint to be made on Hayes by publication...