Howard v. W. Jersey & S. S. R. Co.

• Decision Date: 10 May 1928
• Parties: HOWARD et al. v. WEST JERSEY & S. S. R. CO. et al.
• Court: New Jersey Court of Chancery

141 A. 755

HOWARD et al.

v. WEST JERSEY & S. S. R. CO. et al.

Court of Chancery of New Jersey.

May 10, 1928.

(Syllabus by the Court.)

Suit by Alice O. Howard and husband against the West Jersey & Seashore Railroad Company and another for an injunction. On final hearing. Injunction granted.

Complainants, husband and wife, have brought an action at law against defendants to recover damages for physical injuries alleged to have been sustained by Mrs. Howard through the negligent operation of defendants' railway. By the present suit in this court complainants seek an injunction to restrain defendants from interposing a defense of the statute of limitation in the law court. The relief sought is based upon the claim that the failure of complainants to sue for damages within the statutory period of two years was caused by the conduct of defendants.

The testimony submitted at final hearing in this court cannot be said to be in material conflict or the facts in doubt except as to a certain telephone conversation which occurred on February 9 or 10, 1927—one or two days before the statutory period for suit expired. The facts antedating that telephone conversation are substantially as follows: The casualty occurred February 11, 1925. One MacDonald, as claims investigator of defendants, called at the home of complainants within a day or two thereafter, and Interviewed Dr. Howard, husband of complainant Mrs. Howard, touching the condition of his wife, and continued making like calls on Dr. Howard from time to time— latterly at times using the telephone instead of making personal calls—for a period extending to October, 1926. During all of that time the uniform attitude of Mr. MacDonald was that of sympathetic concern touching Mrs. Howard's injuries and sufferings, and during all of that period both Mr. MacDonald and Dr. Howard appear to have assumed and to have given mutual expression to the view that an amicable settlement could be made when the extent of Mrs. Howard's injuries could be definitely ascertained, and that it would be unnecessary for complainants to employ an attorney, but that any consideration of the amount to be paid by defendants could not be intelligently had until it could be ascertained with greater certainty whether Mrs. Howard's injuries were permanent.

In October, 1926, Dr. Howard and Mr. MacDonald determined that Mrs. Howard's condition was sufficiently defined to justify a consideration of the terms of settlement and Mr. Turnbull, as the superior officer of defendants' district claims department, was notified to that effect. Accordingly Mr. Turnbull called on Dr. Howard for the purpose named October 13, 1926. At that interview Mr. Turnbull asked Dr. Howard to state the amount that would be accepted in settlement, and Dr. Howard named $10,000. No reply was made by Mr. Turnbull touching the reasonableness of that amount. He then inquired whether he might interview the six physicians who had treated Mrs. Howard, and received Dr. Howard's permission to do so. It was then arranged that Mr. Turnbull would see the several physicians, or cause them to be interviewed, and take up the matter with defendants and apprise Dr. Howard of the result. From that date until February 9 or 10, 1927, Dr. Howard confidently awaited a reply from Mr. Turnbull touching the amount defendants would pay. On February 9 or 10, 1927—Mr. Turnbull says positively February 9th; Dr. Howard thinks it may have been February 10th—Mr. Turnbull called Dr. Howard on the telephone, and stated to him that defendants would pay in settlement $2,500, but would not pay more. The statutory period for suits on claims of that nature is two years, and in consequence expired February 11, 1927. At the time of that telephone conversation, Mr. Turnbull admittedly knew that the two years' limitation would expire February 11, since he had shortly theretofore discussed that fact with the solicitor of defendants. Dr. Howard did not know of the two-year period of limitation.

The only dispute touching the substance of the telephone conversation of February 9th or 10th is that Mr. Turnbull says that he named $2,500 as an ultimatum, and that Dr. Howard definitely and finally refused to accept that amount, and stated that he would "take other means." Dr. Howard says that his reply was that he did not think Mrs. Howard would accept that amount, but that he would submit the offer to her and apprise Mr. Turnbull of her determination.

There can be no doubt from the evidence that Dr. Howard fully understood during the entire statutory period that the liability of defendants for damages would not be contested, nor can it be doubted that his belief in that respect was caused by the attitude of the representatives of defendants, and that his failure to employ an attorney prior to the expiration of the statutory period was due to that belief. It is also reasonably clear that both of the representatives of defendants already referred to knew, or had reason to believe, that Dr. Howard had no attorney. It is also certain that Dr. Howard did not know of any limited period within which suit should be brought until after the expiration of...