Ford v. Rogovin
| Decision Date | 01 March 1935 |
| Citation | 289 Mass. 549,194 N.E. 719 |
| Parties | FORD v. ROGOVIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Suffolk County; Donahue Judge.
Action of tort by Benjamin Ford against Isadore H. Rogovin. A verdict was ordered for the defendant. On plaintiff's exceptions.
Exceptions overruled.
H. Leventhal and S. H. Kalish, both of Boston, for plaintiff.
R. J. Coffin, of Boston, for defendant.
This is an action of tort to recover compensation for personal injuries to the plaintiff and damage to his automobile resulting from the negligent operation by the defendant of his automobile. The declaration is in two counts, the first for personal injuries and the second for property damage. The defendant pleaded general denial, contributory negligence and, to the first count, the one-year statute of limitations. The second count was waived and a verdict for the defendant was directed on the first count. The plaintiff excepted to the direction of the verdict and to the exclusion of evidence.
First. The verdict was directed rightly on the ground that the action was barred by lapse of time under G. L. (Ter. Ed.) c. 260, § 4.
The accident occurred and, consequently, the cause of action accrued on March 30, 1928. On no view of the law was the action commenced before the date of the writ, July 12, 1929. Bickford v. Furber, 271 Mass. 94, 97, 170 N.E. 796. By G. L. (Ter. Ed.) c. 260, § 4 (), ‘ actions of tort for bodily injuries * * * the payment of judgments in which is required to be secured by chapter ninety * * * shall be commenced only within one year next after the cause of action accrues.’ This is such an action, even though the plaintiff sought to recover for ‘ medicine and medical attendance’ for himself and the action was brought before the passage of St. 1930, c. 340. McAdam v. Federal Mutual Liability Ins. Co. (Mass.) 193 N.E. 362. Compare Bartlett v. Hall (Mass.) 193 N.E. 360. The action, therefore, is barred unless on some ground it is taken out of the operation of the statute. But the evidence did not warrant a finding of facts which would take it out of the operation of the statute on any ground.
1. The evidence did not warrant a finding that the defence of the statute of limitations was waived by the defendant or that he is estopped to set up this defence.
The defendant has not waived the defence of the statute of limitations by failing to plead it and, so far as appears, has not failed to insist upon this defence throughout the trial of the case. Furthermore, it does not appear that he ever made any express agreement to waive this defence. See Sheehan v. Commercial Travelers' Mutual Accident Association of America, 283 Mass. 543, 551, 186 N.E. 627, 88 A.L.R. 975.
The evidence bearing on waiver or estoppel was as follows: The attorney at law who brought this action testified at the trial that he was with the plaintiff at the time of the accident, that he ‘ took the name, registration and license number of the defendant’ and ‘ before leaving the scene of the accident * * * talked with the defendant who said that he would be around to see the plaintiff and that he was insured.’ This witness also testified that toward the end of May, 1928, he ‘ heard from the defendant’ who ‘ gave the witness the name of his insurance company,’ and ‘ told the witness that it would not be necessary to bring any suit * * * in behalf of the plaintiff and that the defendant would see to it that his insurance company would settle the case.’ The witness testified that he wrote to the insurance company on June 2, 1928, and that he ‘ may have seen * * * [the defendant] once more.’ On cross-examination this witness testified that ‘ the last interview he remembers with the defendant was in May, 1928; that the defendant said that the plaintiff need not worry; that the insurance company would take care of the amount of his damage; * * * that it was at that interview that the witness first learned the name of the insurance company; that at that time, the defendant told the witness that he would see that the insurance company made a settlement.’ The plaintiff testified ‘ that he never talked to the defendant about the accident; that he went to the insurance company about eight or nine months, maybe ten months, after the accident.’
The ground on which the plaintiff relies to avoid the defence of the statute of limitations-whether described as waiver of the defence or estoppel to set it up-is that the statements of the defendant lulied the plaintiff into the false belief that it was not necessary for him to commence action within the statutory period of limitations (see McCord v. Masonic Casualty Co., 201 Mass. 473, 476, 88 N.E. 6), that the plaintiff was induced by these statements to refrain from bringing suit, as otherwise he would have done, and was thereby harmed, and that the defendant ‘ knew or had reasonable cause to know that such consequence might follow.’ Boston & Albany Railroad Co. v Reardon, 226 Mass. 286, 291, 115 N.E. 408, 411. In McLearn v. Hill, 276 Mass. 519, 177 N.E. 617, 77 A.L.R. 1039, it was decided that a defendant may be estopped to set up the statute of limitations here involved and it was pointed out that ‘ fraud in its strict sense is not essential to estoppel,’ but an estoppel may be created not only by ‘ fraud arising from an intention to mislead’ but also by ‘ words or conduct not consonant with fairness and designed to induce action by the plaintiff to his harm in nature not different from that caused by fraud in its grosser aspects.’ Page 527 of 276 Mass.,177 N.E. 617, 620. But the words or conduct must be such that a reasonable man would rely thereon. Tracy v. Lincoln, 145 Mass. 357, 359, 14 N.E. 122. And ‘ the doctrine of estoppel is not applied except when to refuse it would be inequitable.’ ...
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