Groseth v. Ness
| Decision Date | 18 November 1966 |
| Docket Number | No. 617,617 |
| Citation | 421 P.2d 624 |
| Parties | Harold GROSETH, Appellant, v. Orville NESS and Northern Insurance Adjusters, a corporation, Appellees. |
| Court | Alaska Supreme Court |
John M. Savage, Anchorage, for appellant.
Daniel A. Moore, Jr., Delaney, Wiles, Moore & Hayes, Anchorage, for appellee Orville Ness.
John C. Hughes and Robert C. Erwin, Hughes, Thorsness & Lowe, Anchorage, for appellee Northern Ins. Adjusters.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
Within one month from the time appellant had emigrated to the United States from Norway, he became involved in an accident. On January 10, 1961, while walking on the Glenn Highway near Chugiak, Alaska, appellant was struck by an automobile driven by appellee Orville Ness and owned by Helen Long.
AS. 09.10.070 of Alaska's Code of Civil Procedure requires that an action for personal injuries be commenced within two years after the cause of action has accrued. 1 On July 31, 1963, more than two years after the accident, appellant 'commenced' a negligence action for personal injuries by filing a complaint in the superior court. 2 In his complaint appellant alleged that appellees should be estopped from relying upon the two-year statute of limitations. In his estoppel allegations appellant asserted that he
would show that the statute of limitations ordinarily barring a claim filed this late after the accident occurring on January 10, 1961, has been tolled by defendant Simpson's (made individually and as agent for Northern Insurance Adjusters) promises that plaintiff Groseth's injuries would be paid for and an equitable settlement made if plaintiff Groseth would forbear suit. He will show that he detrimentally relied on such promises, forbearing suit, and that the defendants have now refused to pay for his injuries or enter into an amicable settlement. 3
In their answers, appellees alleged, as an affirmative defense, the bar of the twoyear statute of limitations. Then appellee Northern Insurance Adjusters made a motion, which was granted, for separate trial of the estoppel-statute of limitations issue. 4 A pre-trial conference was thereafter held and a pre-trial order entered. After six days of trial, a superior court jury returned answers to interrogatories which had been propounded to them concerning the separate estoppel-statute of limitations issue. On the basis of the jury's answers to these interrogatories the superior court entered a judgment which provided:
1. That the statute of limitations, as to the January 10, 1961, claim of the plaintiff has run and plaintiff's action is barred thereby.
2. That the plaintiff's complaint against each and every defendant is dismissed with prejudice.
Appellant assigns as error numerous exclusionary evidentiary rulings of the lower court's as well as several of the court's instructions and interrogatories. 5 Review of the record in this case and the lower court's instructions pertaining to the estoppel issue has convinced us that althrough the trial court's instructions were erroneous, such errors were harmless. 6
In the complaint appellant grounded his allegations of estoppel upon a promise by Jack Simpson, who was appellee Northern's agent, to pay him for his injuries if he would forbear from instituting suit. At the very outset of the trial appellant's counsel indicated to the jury that his proof would show an estoppel in that
in * * * dealing with Mr. Groseth * * * Mr. Simpson led Mr. Groseth to believe that they were ultimately going to make an equitable settlement of this case, and this is the basis of our case, that Mr. Groseth was lulled beyond the Statute of Limitations * * *. 7
After counsel for appellant had completed his opening statement, appellee Northern filed a motion for dismissal. The basis for appellee's motion was that it would result in an 'unfair advantage' to permit appellant to proceed on an entirely new theory of estoppel 'contrary to the pleadings and contrary to the pre-trial order.' 8 Northern's motion, together with certain other motions, 9 was then taken under advisement and counsel were informed that these motions would be ruled on at a later stage in the case.
The record indicates that Northern's motion never was explicitly ruled on by the trial judge. Examination of the record also demonstrates that there was a total absence of any evidence that the adjuster, Jack Simpson, in fact promised appellant that he would be paid for his injuries if he would refrain from bringing suit. Despite the fact that appellant's counsel, in his opening statement, had abandoned the promise-estoppel theory which had been alleged in the pleadings, and in disregard of the circumstance that there was an absolute absence of any evidence which would support a promise-grounded estoppel theory, the court's instructions made a promise of payment (in exchange for appellant's forbearance) a prerequisite to the jury's finding of an equitable estoppel.
There are several circumstances which should be referred to before further discussion is had of the court's instructions in regard to estoppel. At the conclusion of appellant's case in chief appellees moved for directed verdicts based in part upon appellees' previous contentions that appellant's proof had varied from his theory of estoppel as alleged in the complaint and pre-trial order. At this point counsel for appellant moved to amend the pleadings to conform to the evidence by striking that portion of the pleadings which 'state, in effect, that there was a promise to pay if there was a forbearance of suit * * * and that just an ordinary pleading of estoppel (be) entered in its place * * *.' The trial judge, while indicating that he was of the opinion that appellees' motions for directed verdicts should be granted concluded that in the event of an appeal this court should have the benefit of a 'full record rather than * * * a part record' and 'Accordingly, I'm going to hold these motions in abeyance.' After the parties had rested their respective cases, appellees again moved for directed verdicts and, as before, the trial court declined to rule on these motions. Subsequently, appellant's motion to amend his pleadings to conform to his proof was denied by the trial court on the grounds that there was no evidence to support the motion to amend. 10
In delineating the issues which were to be determined by the jury, the trial court instructed them that:
This proceeding is for the purpose of determining the facts in order that it may be adjudged as to whether the statute of limitations is or is not a bar to this particular lawsuit. * * * Your consideration will be limited to the question as to whether or not Jack Simpson, acting for Northern Insurance Adjusters, promised the plaintiff that his injuries would be paid for and an equitable settlement made if the plaintiff Groseth would forbear suit and as to whether or not the plaintiff Groseth detrimentally relied on any such promise as was made and did for that reason forbear bringing suit within the two-year statutory period. 11
This instruction was followed by one in which the jury was told that:
As a matter of law, when the act or promise of one causes another to do or forbear from doing something he would have done or to do something which he otherwise would not have done, as the case may be then the other party is estopped from taking advantage of the act or omission caused by his own act or promise. * * * 12
It will be for you to determine in this case as to whether under all the facts and circumstances as disclosed by the evidence in this case and in the light of the allegations of plaintiff's complaint, as above set forth, plaintiff Groseth is entitled to the benefit of the doctrine of estoppel as herein set forth. * * * (Emphasis added.)
At another point in the instructions the jury was informed that their
verdict must be for the defendants and all of them unless you find that the defendants or some of them made a binding promise to pay the plaintiff's claim if he would forbear bringing suit within the two year period next succeeding the date of the accident. 13
Each of the instructions and interrogatories, to which we have alluded, was timely and appropriately objected to by counsel for appellant.
As we have indicated, our reading of all of the court's instructions in light of the evidence which was produced at the trial has led us to conclude that the instructions concerning the estoppel question were erroneous. The record is devoid of any evidence of a promise on Jack Simpson's part. In such a situation instructions which were directed toward the necessity of the jury's finding such a promise in order to give rise to an estoppel were unwarranted. 14 The error in these instructions was harmless because we are of the opinion that appellee's motions for directed verdicts should have been granted as there was no evidence from which the jury could have found an estoppel. 15
Both federal and state authorities have established that the doctrine of equitable estoppel is available as a bar to inequitable reliance upon statutes of limitations. 16 In Glus v. Brooklyn E. Dist. Terminal, 17 the Supreme Court of the United States characterized this doctrine of estoppel in the following manner:
As Mr. Justice Miller expressed it * * * 18
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