Lyden v. Goldberg

• Decision Date: 05 November 1971
• Citation: 490 P.2d 181,260 Or. 301
• Parties: Thomas E. LYDEN, Appellant, v. Anita GOLDBERG, Respondent.
• Court: Oregon Supreme Court

Page 181

490 P.2d 181

260 Or. 301

Thomas E. LYDEN, Appellant, v. Anita GOLDBERG, Respondent.

Supreme Court of Oregon.

Argued and Submitted July 7, 1971.

Decided Nov. 5, 1971.

Graham Walker, Portland, argued the cause for appellant. On the briefs were Lou L. Williams, Portland, and Myatt, Bolliger, Hampton & Freerksen, Beaverton.

Leo Levenson, Portland, argued the cause for respondent. With him on the brief were Mize, Kriesien, Fewless, Cheney & Kelley, Portland.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, and BRYSON, JJ.

BRYSON, Justice.

On July 29, 1970, plaintiff filed an action against defendant for personal injuries arising out of an automobile accident which occurred on December 15, 1967. The first amended complaint alleged that the defendant was insured pursuant to a policy of insurance in effect at the time of the accident; that the defendant conferred upon the insurance company and its employees the right to make investigation and settle any claim; that

'Subsequent to the above mentioned automobile accident and prior to December 15, 1969 insurance company's employees pursuant to authority conferred by the aforementioned contract and acting within the scope of their exployment paid plaintiff for the repair of his vehicle, paid his bill for x-ray and diagnostic procedures, paid plaintiff's treating physician for services rendered to the time of payment, and orally assured plaintiff that his injury claim would be settled by the insurance company when plaintiff's medical condition was such that he was ready to settle. Defendant's agent, the insurance company, knew that there was a two year statute of limitations on plaintiff's personal injury action while plaintiff did not. Insurance company's conduct and statements were intended to and did deter plaintiff from employing an attorney to represent his interest during the two year period following the aforementioned accident. Defendant's agent, the insurance company, though it knew of the Statute of Limitations and its own aforementioned conduct and assurances did not inform defendant of the Statute of Limitations until February of 1970. At that time plaintiff telephoned defendant's agent, the insurance company, and was told by an employee that plaintiff's claim would no longer be considered because it was barred by the Statute of Limitations. Plaintiff promptly thereafter engaged counsel for the purpose of representing him in this matter. Defendant is estopped by the authorized conduct and declarations of her agent, the insurance company, which has agreed to defend this action and pay all sums to which the defendant shall become legally obligated to pay, from pleading the Statute of Limitations.'

The defendant filed a demurrer to the first amended complaint on the ground that the action had not been commenced within the time limited by statute. ORS 12.110(1), ORS 16.260(7). The court sustained the demurrer and entered judgment for the defendant. Plaintiff appeals and assigns as error the court's ruling 'that the facts pleaded did not create an estoppel.' Defendant contends 'a complaint is insufficient to constitute an avoidance or bar to defense of the statute of limitations, without allegations of facts containing all essential elements of estoppel.'

Defendant argues:

'(A) plea of estoppel must allege all essential facts and must include all the following elements of estoppel.

'To constitute an equitable estoppel, or estoppel by conduct, there must (1) be a false representation; (2), it must be made with knowledge of the facts; (3) the other party must have been ignorant of the truth; (4) it must have been made with the intention that it should be acted upon by the other party; and (5) the other party must have been induced to act upon it. * * *' Earls et ux. v. Clarke et al., 1960, 223 Or. 527, 530--31, 355 P.2d 213, 214; Donahue v. Eugene Planing Mill, 252 Or. 543, 545, 450 P.2d 762 (1969); Reed v. Commercial Ins. Co., 248 Or. 152, 154, 432 P.2d 691 (1967) 54 C.J.S. § 343, b, page 465; 51 Am.Jur.2d, § 476, page 932.'

The above proposition of law has also been approved in Bennett v. City of Salem et al., 192 Or. 531, 541, 235 P.2d 772 (1951); Bramwell v. Rowland, 123 Or. 33, 47, 261 P. 57 (1927).

In this case plaintiff alleges the insurance company's employee paid for the repair of his vehicle, for x-ray and diagnostic procedures, and the charges of plaintiff's treating physician, and assured plaintiff his injury claim would be settled by the insurance company when plaintiff's medical condition was such that he was ready to settle. This was all prior to the running of the statute of limitations on December 15, 1969.

To invoke the doctrine of estoppel, the defendant or her agent, the insurance company, must have done something that amounted to an affirmative inducement that would cause plaintiff to delay bringing his action.

This court, in Kimball v. Horticultural Fire Relief, 79 Or. 133, 142, 154 P. 578, 581 (1916), stated:

'An estoppel always implies a party has been misled to his prejudice, or into an altered position which he would not have taken except for representations relied upon; and, * * * the estoppel may arise without an intent to guide astray, upon principle, testimony tending to prove such a deception must be admissible, * * *.'

The rule pertaining to estoppel to be applied under the pleadings of this case are fully discussed in Safeway Stores, Inc. v. Wilson, 190 Kan. 7, 372 P.2d 551, 555 (1962), wherein they quote from an earlier case of Rex v. Warner, 183 Kan. 763, 332 P.2d 572, 579 (1959), as follows:

"* * * It is a legal maxim well understood that nothing can interrupt the running of the statute of limitations, and it is commonly stated without any qualification. Courts, however, have ingrafted upon such statutes an exception based upon estoppel. Generally speaking, actual...