Krupa v. Kelley

• Decision Date: 01 March 1968
• Docket Number: No. CV,CV
• Citation: 5 Conn.Cir.Ct. 127,245 A.2d 886
• Parties: Joseph F. KRUPA et al. v. Gordon F. KELLEY et al. 7-6512-7398.
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division

Page 886

245 A.2d 886

5 Conn.Cir.Ct. 127

Joseph F. KRUPA et al. v. Gordon F. KELLEY et al.

No. CV 7-6512-7398.

Circuit Court of Connecticut, Appellate Division.

Argued Nov. 27, 1967.

Decided March 1, 1968.

Joseph L. Zalenski, Mariden, for appellants (plaintiffs).

Harold M. Mulvey, New Haven, for appellees (defendants).

TOSCANO, Judge.

The plaintiffs brought this action to recover damages for injuries alleged to have been sustained as a result of the negligent operation of a motor vehicle owned by the defendant Cumberland Farms Dairy Products, Inc., and operated by its admitted agent, Gordon F. Kelley, the named defendant. The court rendered judgment for the defendants, and the plaintiffs have appealed, claiming that the court erred in its findings and conclusions. The court's conclusions are set forth in a memorandum of decision which under our rules becomes a part of the record on appeal. Practice Book § 992. The Statute of Limitations was pleaded as an affirmative defense. The principal questions before us are whether the trial court erred (1) in concluding that the Statute of Limitations bars the action; (2) in refusing to find facts as set forth in the plaintiffs' motion to correct the finding; and (3) in refusing to strike two paragraphs of the finding.

On February 23, 1964, Joseph F. Krupa, Margaret K. Krupa and Anna V. Krupa were passengers in an automobile involved in a collision with the defendants' automobile. The Zurich Insurance Company, which is not a party to this action, was the liability carrier on the defendants' vehicle. Thereafter, Zurich's adjusters negotiated with the plaintiffs concerning the settlement of the plaintiffs' claims for damages. A total of three visits were made to the home of the plaintiffs by the adjusters. The first visit was made by a Mr. Haven in March or April of 1964. The other two visits were made by a Mr. Balcher in September or October of 1964. At his last visit, Mr. Balcher made an offer to the plaintiffs to settle these cases for a total of about $3000, and the offer was refused by the plaintiffs. There was no further contact between the plaintiffs and personnel of the Zurich Insurance Company until June, 1965.

This action was commenced by writ, summons and complaint dated November 23, 1965, and returnable to this court on the third Tuesday of December, 1965. In their answer, the defendants pleaded as a special defense that the action was barred by the Statute of Limitations. The plaintiffs filed a reply which alleged that the defendants or their agents had, within the year following the accident, made representations and assurances to the plaintiffs for the sole purpose of inducing inaction on their part so that the statute would run. This issue was, by agreement of counsel, tried to the court and was found in favor of the defendants. Pursuant to stipulation, judgment was rendered in favor of the defendants and the plaintiffs appealed.

Under Connecticut law, the plaintiff seeking to toll the Statute of Limitations by showing fraudulent concealment by the defendant of the plaintiffs cause of action must show that the defendant's conduct or representations were directed to the very point of obtaining a delay of which the defendant afterward sought to take advantage by pleading the statute. The plaintiff must show fraudulent concealment by the defendant of the plaintiff's cause of action; that the plaintiff was ignorant of the existence of a right of action; that the defendant intended that the plaintiff be kept in ignorance; and, in the absence of a fiduciary relationship, that the defendant was guilty of some affirmative act of concealment-of more than mere silence. Zimmerer v. General Electric Co., 126 F.Supp. 690 (D.Conn.). In Lobrovich v. Georgison, 144 Cal.App.2d 567, 573-575, 301 P.2d 460, 464, the court said: 'If there is still ample time to institute the action within the statutory period after the circumstances inducing delay have ceased to operate, the plaintiff who failed to do so cannot claim an estoppel. * * * 'The statute of limitation is a positive rule of law, and the courts must, when it is pleaded, be governed by it where it applies * * *.' * * * independent of the existence of prejudice to the defendant.'

'Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end desired.' Alexander v. Church, 53 Conn. 561, 562, 4 A. 103, 104. Fraud is not to be presumed but is to be strictly proven, and the evidence must be clear, precise, and unequivocal. Burley v. Davis, 132 Conn. 631, 634, 46 A.2d 417. The defendants are entitled to rely on the Statute of Limitations as a defense to this action and are not liable for damages occasioned to the plaintiffs by the running of the statute unless the defendants' conduct or representations were directed to the very point of obtaining the delay of which the defendants afterward sought to take advantage by pleading the statute. Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995; Zimmerer v. General Electric Co., supra. The defendants are not estopped to rely on the Statute of Limitations where the plaintiffs were delayed in commencing suit, not by misrepresentations of the defendants, but by negotiations and at the conclusion of negotiations there was still ample time to institute suit. Lobrovich v. Georgison, supra. Ordinarily, in a business transaction each party must look out for his own interests, and if one party knows something the other does not, the former is under no obligation to disclose it. This is peculiarly so where all the facts are open to discovery upon inquiry by either. Stanio v. Berner Lohne Co., 127 Conn. 431, 17 A.2d 502.

'One purpose (of the Statute of Limitations) is to prevent the unexpected enforcement of stale claims concerning which the persons interested have been thrown off their guard by want of prosecution.' Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814, 816. 'The statute of limitations is a statute of repose. At times, it may bar the assertion of a just claim. Then its application causes hardship. The Legislature has found that such occasional hardship is outweighed by the advantage of outlawing stale claims.' Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 302, 200 N.E. 824, 827, 104 A.L.R. 450; Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176, 179, 62 A.2d 771. It must be pointed out that the plaintiffs in the...