Bates v. Metropolitan Transit System, Inc., 47764

• Citation: 128 Ga.App. 720,197 S.E.2d 781
• Decision Date: 04 April 1973
• Docket Number: No. 3,No. 47764,47764,3
• Parties: Russell M. BATES v. METROPOLITAN TRANSIT SYSTEM, INC
• Court: Georgia Court of Appeals

Page 781

197 S.E.2d 781

128 Ga.App. 720

Russell M. BATES v. METROPOLITAN TRANSIT SYSTEM, INC.

No. 47764.

Court of Appeals of Georgia, Division No. 3.

April 4, 1973.

William F. Woods, Atlanta, for appellant.

Hansell, Post, Brandon & Dorsey, Hugh M. Dorsey, Jr., Atlanta, for appellee. Syllabus Opinion by the Court

PANNELL, Judge.

This appeal is from an order of the trial court sustaining defendant-appellee's motion for judgment notwithstanding the verdict on the issue of the application of the statute of limitation in a civil tort case arising out of a collision involving a bus and plaintiff-appellant's automobile on November 8, 1956. On September 29, 1958, plaintiff filed suit against Atlanta Transit System, Inc., which entered a general denial on October 11, 1958. That response denied allegations that Atlanta Transit System, Inc., was operating the bus and that the driver was an employee of Atlanta Transit System, Inc. By amendment to its answer on January 6, 1959 Atlanta Transit System, Inc., specially denied owning or operating the bus involved in the collision. On September 2, 1960, plaintiff filed this action against Metropolitan Transit System, Inc. Defendant-appellee pleaded the statute of limitation. Plaintiff claimed he was misled by an agent of defendant, that the statute of limitation was tolled by fraud, and defendant is estopped from pleading the statute of limitation. Defendant averred that no fraud was involved, plaintiff had not met the duty of ordinary care, and the statute of limitation barred recovery.

1. Georgia Laws (Code § 3-1004) provides a two-year statute of limitation for causes of action for personal injuries in civil cases; but if the defendant, or those under whom he claims, shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud. Code § 3-807; Wood v. Anderson, 60 Ga.App. 262, 3 S.E.2d 788; 34 Am.Jur. 187, 323, 332. As an exception to the statute of limitation it should be strictly construed. Printup v. Alexander & Wright, 69 Ga. 553; Anderson v. Gailey, 33 F.2d 589 (N.D.Ga.1929). The fraud established to toll the statute of limitation must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action. Anderson v. Foster, 112 Ga. 270, 37 S.E. 426; Ponder v. Barrett, 46 Ga.App. 757, 169 S.E. 257. The plaintiff has the burden of establishing fraud involving moral turpitude. Clinton v. State Farm Mutual Auto Ins. Co., 110 Ga.App. 417, 138 S.E.2d 687. In the absence of a fiduciary relation, even fraud will not prevent a suit from being barred, where the plaintiff has failed to exercise reasonable diligence to detect such fraud. Stephens v. Walker, 193 Ga. 330, 332, 18 S.E.2d 537; Brinsfield v. Robbins, 183 Ga. 258, 188 S.E. 7.

2. Metropolitan Transit System, Inc., is a corporation owned by Atlanta Transit System, Inc. On the dates pertinent to this case both corporations shared certain services. Atlanta Transit System, Inc. provided claims settlement for both corporations for which service Metropolitan Transit System, Inc. reimbursed Atlanta...