Central Manufacturers Mutual Insurance v. Torreyson

DORAN, J. The action herein, one to recover damages caused by fire alleged to be due to defendants’ negligence, was dismissed by the trial court on the ground that appellants had failed to prosecute the same with reasonable diligence. Plaintiffs have appealed from the judgment of dismissal.

Plaintiffs and appellants, as subrogees under policies of fire insurance, filed the action in question on July 6, 1948. The summons was delivered to the sheriff of Ventura County for service on July 8, 1948, and on July 10, 1948, the civil deputy sheriff, having learned that the respondent Torreyson had left Ventura County, returned the summons to appellants’ attorney. An examination of the grand register in the county clerk’s office and the post office records together with other investigation, failed to disclose the defendant’s whereabouts.

Respondent’s motion to dismiss on the ground of failure to prosecute the action with reasonable diligence, was filed December 12,1951, argued on January 14,1952, and the action ordered dismissed on January 15, 1952. An affidavit in opposition to the motion was filed by appellants’ attorney, and avers that the attorney conducted an investigation to discover respondent’s whereabouts through the Department of Motor Vehicles, and other sources, but was unable to locate respondent until 1951. The summons was again placed in a deputy sheriff’s hands for service on July 10, 1951, but the officer was unable to serve same until December 2, 1951. As before noted, the motion in question was thereafter filed.

The affidavit of appellants’ attorney recites that affiant was “informed that the defendant was outside the continental limits of the United States and in Arabia with the Bechtel International Corporation for a year and a half from April, 1948 until October, 1949, when he returned to Ventura. That since that time the defendant has been outside the territorial limits . . ., working in the Channel Islands approximately 25 miles off the coast of California for a considerable portion of the time from December, 1949 to December, 1951.”

Officer Cummings who finally served the summons on respondent, made affidavit that between July 10 and December 2, 1951, “affiant called at the residence of said defendant many times, at all hours and days of the week, and at some [636]periods as many as three and four times a week”; that affiant was informed by respondent’s wife that Don Torreyson “was working in the Channel Islands . . . and that he came home to Ventura on occasional days off work; that affiant left many messages for the defendant to call him when he was in Ventura, but that the defendant failed and refused to do so, although affiant would later learn that the defendant had been in town. That on several occasions when affiant knocked on the door ... he would hear voices inside the house, but they refused to answer the door, and affiant believes that said defendant was within the house and concealing himself to avoid service of summons. ’ ’