Sylvestre v. King Manufacturing Co.

STEPHENS, J.

On November 25, 1960, plaintiff was employed as a plumber and was engaged in cleaning out the sewerage system in a residence in Los Angeles County. He was using two chemicals in the operation, each designed to aid in the cleaning. One was manufactured by defendant Super-X Products, Inc., and the other, by defendant King Manufacturing Company (sometimes hereinafter referred to as King). In the effort of plaintiff to relieve the sewerage stoppage, first one brand of cleaner was induced into the line. No result occurring, the second brand was added. When the two combined, a large explosion occurred, damaging the residence and causing severe physical injury to plaintiff.

On November 24, 1961, plaintiff filed his complaint and had summons issued thereon, claiming damages for his personal injuries. Personal service of process was made on Super-X Products, Inc., but plaintiff was unable to obtain personal service of process upon King. Plaintiff had written to the company as far back as August of 1961 at its office in Flint, Michigan, and the letter was neither returned nor answered. Plaintiff continued his efforts to ascertain where defendant King could be found in California. The office of the California Secretary of State informed plaintiff that there was a California corporation by the name of King Manufacturing Company that had been suspended for failure to pay taxes. Erroneously assuming that this suspended corporation was the manufacturer of the chemical used in the accident, plaintiff sought to locate its agents to effectuate personal service of process. In January 1964, plaintiff sought service by publication, but the affidavit was found to be deficient in supplying information to establish that the defendant was absent from the state. In May of 1964, plaintiff again wrote the defendant King in Flint, Michigan, this time requesting a reply supplying information sufficient upon which to base the affidavit of nonresidence. Response to this letter informed plaintiff that King Manufacturing Company was in fact a single proprietorship owned and operated by Mrs. Reta L. Melnnes, and not the suspended California corporation. The defendant company was based in Michigan and had no agents for service of process in California. Its products were, however, offered for sale in California. Two further requests for service by publi

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cation were made and rejected, the last with the direction that Mrs. Mclnnes should be substituted for one of the Does in the complaint. The complaint was so amended, and the request for service by publication approved. Proof of publication was filed with the clerk of the superior court on December 29, 1964. Thereafter, defendant Mclnnes, doing business as King Manufacturing Company, moved for dismissal pursuant to section 581a