Bergeron v. Mansour, 4053.

Citation152 F.2d 27
Decision Date23 November 1945
Docket NumberNo. 4053.,4053.
PartiesBERGERON v. MANSOUR.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

William A. Gunning, of Providence, R. I., for appellant.

William G. Todd, of Boston, Mass., and William S. Flynn, of Providence, R. I., for appellee.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

On October 21, 1943, the plaintiff filed her complaint in the court below seeking to recover damages for personal injuries sustained by her when the automobile in which she was riding as a guest and the automobile owned and operated by the defendant collided on the Boston Post Road in the Town of South Attleboro, Mass., on June 20, 1940. In reply to the plea of the statute of limitations as a bar to the action, the plaintiff alleged that the conduct of the defendant, through his agents and servants, constituted an estoppel which prevented him from interposing such a defense. At the close of the evidence the defendant moved for a directed verdict and the court denied the motion. The jury returned a verdict for the plaintiff and judgment was entered in the sum of $27,500. A motion to set aside the verdict and judgment and enter judgment for defendant was denied and the motion for a new trial was also denied if the plaintiff filed a remittitur in the sum of $7,500. The plaintiff filed such remittitur and judgment was entered for her in the sum of $20,000, and the defendant has appealed.

It has been stipulated that there is no question of liability or damages in this court. Under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the substantive law governing this case is the law of Massachusetts. State statutes of limitations, whether regarded as having "procedural" or "substantive" effect, are binding on the federal courts, sitting in equity or at law, where the rights pursued in the federal courts are granted by the state. Guaranty Trust Co. of New York v. York, 325 U.S. ___, 65 S.Ct. 1464. There is a one year statute of limitations in Massachusetts on actions arising out of motor vehicle accidents.1 The plaintiff's father, Mansour S. Mansour, testified that on the day after the accident, June 21st, Russell J. Wright, an adjuster for an insurance company, called upon him at his place of employment; told him that he represented the Maryland Casualty Insurance Company, which insured the car involved in the collision, and talked about the "terrible accident" to his daughter. They discussed the accident and the condition of the plaintiff. He said the adjuster told him: "I want you to see your daughter and tell her that the Maryland Casualty Company is a very good company and willing to pay all her damages and don't let her hire a lawyer at all. She don't need no lawyer at all in that case." Mr. Mansour also testified that Wright told him: "When your daughter gets well everything will be settled promptly * * * we will pay that bill ourselves." Mansour stated that he was told to take the matter up with his daughter "and see what she says". The father did this on the following Sunday when the plaintiff had regained consciousness. He told her that the adjuster had said: "You don't need no lawyer in that case at all because the company is a reliable company and they will pay all the damages and suffering." Her father said she replied: "If you think it is all right, it is all right with me." On Saturday a week later, after he had received the weekly bill from the hospital, he went to the adjuster's office and said: "I got a bill from the hospital; what am I going to do with it? Will I have to pay it now or wait or what will I do with it?" The adjuster told him: "Those bills will come along every week as long as your daughter is in the hospital. When the final bill comes give it to me and we will take care of it." He said the adjuster asked him "if I saw my daughter and speak to her about what he promised and I said, `Yes, I did' and he said `What did she say?' I said: `Well, she agreed not to see a lawyer and not to bring a suit at all as long as he promised.' He said: `That is very good; that is fine; you keep that up'."

Again, the father, on September 2, 1940, after he had received the final bill from the hospital and his daughter had returned home, went to the adjuster's office and gave him the final bill. Wright asked him: "How is your daughter now?" and he told him: "She is not able to move at all. She will have to use the crutches for a long time; I don't know how long." He then asked the adjuster: "When do you think we are going to settle the accident. You promised we were going to settle the accident without any lawyers" and the adjuster said: "Your daughter is not well yet?" Mansour replied: "Of course not because she will be on crutches for a long time. I don't know how long she is going to be in that condition." And then Wright said: "As long as your daughter is that way, we cannot talk about settlement at all, until your daughter gets well * * *. We don't know what the damage is now."

The adjuster asked him if he had seen a lawyer about the case and he replied that he had not. Mansour said that the adjuster again promised "that if we did not see a lawyer, the company would settle that accident with us without an outsider" and also stated: "Don't give the benefit to the lawyers. We will get together on it" and that the insurance company would take care of the bill.

At this conference the adjuster arranged with the father for an examination of the plaintiff which was made later by a doctor for the insurance company.

The plaintiff herself testified that her father told her that he had talked with Mr. Wright, an adjuster for the Maryland Casualty Company; that the adjuster had come to see him in the shop, and had "told him that the Maryland Casualty Company was a very reliable concern — insurance company — since it insured my father's place also and that if we did not get a lawyer, that we would settle it between ourselves, when I was well; and I remember my father telling me not to get a lawyer, that everything would be all right with me; and he wanted me to agree with what Mr. Wright had said." The plaintiff testified that she told her father "that is fine" and agreed to abide by Wright's proposal.

She said that she absolutely relied upon the promise which she understood Mr. Wright, the adjuster, had made to her father to settle the case out of court and that she had not consulted a lawyer or instituted any proceedings.

In December, 1941, after she had ascertained that she would have to be admitted to the hospital for further treatment, and that she could not be admitted unless the hospital bill was paid, she took the hospital and doctor's bills to the adjuster and told him that she "could not be admitted unless that hospital bill was paid, and * * * I was bringing him the bills, so that he would take care of it, that I would be admitted; and he told me that there was no — His exact words to me, as I recall them — `You are out of luck. It is too late now'." She asked him what he meant by her being too late and by her being out of luck. She said he replied: "It is too late", and that he kept saying: "You are too late" and "you are out of luck", and wouldn't listen to her. She said she asked him: "What do you mean it is too late? * * * You told my father that if we did not get a lawyer that all my damages and expenses would be paid." She said after that he wouldn't listen to her and he motioned with his hands, and said: "Oh, you are out of luck". She replied: "I guess I will have to have a lawyer" and he said: "You can get any lawyer you want, and he will tell you I am right." He said: "It is too late now. It is over a year." She asked: "What do you mean it is over a year?" He answered: "You can get any lawyer you want, and he will tell you the same thing."

Opposing this testimony was that of the adjuster who said he made no express agreement to waive the statute and no offer to settle the case in a definite sum.

The plaintiff maintains that the representations and conduct of the defendant, through his agents and servants, were such as to estop him from obtaining the benefit of the statute. It seems to us that there is substantial evidence to warrant a verdict for the plaintiff. There can be no doubt that the adjuster held out to the plaintiff the idea and hope of a settlement of her claim, that her hospital and doctor's bills would be paid and that she would be compensated for her pain and suffering if she did not consult counsel. The plaintiff reasonably relied upon the representations and conduct of the defendant and allowed the statute to run before commencing her action. It is not necessary that the representations and conduct should be labelled as fraudulent in a strict legal sense or that they were made or carried on with an intention to mislead the plaintiff. All the circumstances of the case should be considered to determine whether the adjuster should be permitted to repudiate the consequences of his acts. We think it is unconscionable to permit him to lull her into a false sense of security and cause her to let the one year limitation pass and then allow him to take advantage of the result of his conduct as a defense to her action. Howard v. West Jersey & S. S. R. Co., 102 N.J.Eq. 517, 141 A. 755. In Thompson v. Phenix Insurance Co., 136 U.S. 287, 299, 10 S.Ct. 1019, 1023, 34 L.Ed. 408, the Supreme Court in referring to Mickey v. Burlington Ins. Co., 35 Iowa 174, 180, 14 Am. Rep. 494, said that "it would be contrary to justice for the insurance company to hold out the hope of an amicable adjustment of a loss, and thus delay the action of the insured, and then be permitted to plead this very delay, caused by its course of conduct, as a defense to the action when brought." Morality and justice form the basis for equitable estoppel and neither consideration nor legal obligation are required to support...

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