Walters v. Ditzler

• Decision Date: 14 March 1967
• Parties: Daniel J. WALTERS, a Minor, by his Guardian, William B. Walters, and William B. Walters, Appellants, v. A. F. DITZLER.
• Court: Pennsylvania Supreme Court

Page 833

227 A.2d 833

424 Pa. 445

Daniel J. WALTERS, a Minor, by his Guardian, William B.

Walters, and William B. Walters, Appellants, v. A. F. DITZLER.

Supreme Court of Pennsylvania.

March 14, 1967.

John Milton Ranck, Appel, Ranck, Hert & Appel, Charles Foltz Herr, Lancaster, for appellants.

John R. Gibbel, Zimmerman, Zimmerman, Myers & Gibbel, Lancaster, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

On July 2, 1958, Daniel J. Walters, aged four years, while traversing a highway located upon a bridge near Brickerville, Lancaster County, was struck by a motor vehicle operated by A. F. Ditzler and sustained very serious personal injuries.

Following the accident, Ditzler told William Walters, the child's father, that he was insured by Harleysville Insurance Company and that he was sure the insurance company would take care of it 'because that's what (I) pay premiums for'. Six weeks after the accident--when the child was in a condition of complete physical helplessness--an adjuster called at Walters' home. Certain nursing bills were discussed and were turned over to the adjuster by the Walters; the adjuster then told Walters that the insurance company did not pay bills 'piecemeal', that it would have to be a 'lump sum settlement', that by reason of the child's minority, any settlement would have to be approved by the court and that no settlement could be made until the child was 'rehabilitated'. Two days later, the adjuster returned the nursing bills to the Walters. Until April 17, 1961--two years and nine months after the accident--there was no further contact between the insurance carrier or its adjuster and the Walters.

On April 17, 1971, Mrs. Walters wrote a letter to the insurance company stating, inter alia: 'We would like to make settlement at this time'. Eleven days later, the insurance company wrote to the Walters stating, inter alia: 'We have reviewed our file in regard to this matter, and find that the Pennsylvania Statute ¹ has expired and we will be unable to be of any service to you. ²

Fourteen months later--and three years and eleven months after the date of the accident--the present trespass action was instituted in the Court of Common Pleas of Lancaster County against Ditzler. When Walters filed their complaint, Ditzler, acting through his insurance carrier, filed an Answer containing New Matter which raised the defense of the statute of limitations to which New Matter Walters filed a Reply alleging Ditzler was estopped to raise the defense of the statute by reason of the conduct of the insurance company adjuster when he visited the Walters' home on August 16, 1958. Ditzler filed a motion for judgment on the pleadings which was dismissed. Walters then filed an amended Reply wherein the allegations as to the adjuster's alleged fraudulent and misleading conduct were particularized and wherein there was an additional allegation that, by reason of the minority and incompetency of the child, the bar of the statute was tolled. After a hearing, the court below entered judgment in favor of Ditzler and against Walters. From that judgment the instant appeal was taken.

As presented by Walters' counsel, the issue presented is: where an insurance adjuster stated that the insurance company will not pay bills 'piecemeal', that until the child is 'rehabilitated' there cannot be a settlement and that the insurance company would only make a 'lump sum settlement', subject to court approval because of the child's minority, and where the parents of the child were thus led to believe that the insurance company would pay the claim, was the adjuster's conduct of such fraudulent, misleading and deceptive nature as to estop Ditzler from raising the defense of the statute of limitations?

Presently pertinent are certain well settled legal principles: (a) mere mistake, misunderstanding or lack of knowledge do not toll the running of the statute of limitations: Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267 (1963) and authorities therein cited; (b) if, through fraud, deception or concealment of facts, an insurance company lulls an injured person or his representatives into a sense of security so that such person's vigilance is relaxed, then the company is estopped from evoking the statute: Schaffer v. Larzelere, supra, p. 405, 189 A.2d 267, and authorities therein cited; (c) the fraud which will toll the statute and effect and estoppel need not be fraud in the strictest sense, i.e., inclusive of an intent to deceive, but may be fraud in the broad sense, i.e., inclusive of an unintentional deception: Nesbitt v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473 (1964); Schwab v. Cornell, 306 Pa. 536, 539, 160 A. 449 (1932); (d) an estoppel becomes operative only in Clear cases of fraud, deception or concealment: Bonfitto v. Bonfitto, 10 Pa.Dist. & Co.R.2d 598, aff'd 391 Pa. 187, 137 A.2d 277 (1958); Gunn et al. v. Washek, 109 P.L.J. 286, aff'd 405 Pa. 521, 176 A.2d 635 (1961); (e) the statute of limitations will run against persons under a disability, including minors and incompetents: Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958); ³ Von Colln v. Penna. R.R. Co., 367 Pa. 232, 80 A.2d 83 (1951).

Applying these principles to the instant factual situation, it is evident that the doctrine of estoppel cannot be successfully invoked and that the running of the statute of limitations has not been tolled. We agree with the court below: 'According to the facts as found by the court from the testimony, (Walters) have not met the burden of proving by clear, precise and convincing evidence the existence of such fraud or concealment as would estop (Ditzler and his insurance carrier) from pleading the Statute of Limitations. There is no factual dispute that the negotiations were merely toward an amicable settlement. The nursing bills * * * were discussed and given to * * * the adjuster, who returned them to (Walters) on August 18, 1958 and there is no evidence that other accrued bills were sent to (Ditzler's) insurance carrier or its adjuster, * * * nor is there any evidence that (Ditzler) or his insurance carrier, through its adjuster, ever said they would see (Walters) again * * *. However unfortunate it was the duty of (Walters) as held in Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 in asserting their cause of action against (Ditzler) to use all reasonable diligence to properly inform themselves of the facts and circumstances upon which the right of recovery is based and to institute the suit within the prescribed statutory period and that mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute of limitations.' Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964), Amrovcik v. Metropolitan Life Insurance Co., 119 Pa.Super. 176, 180 A. 727 (1935) and Bodenstein's Estate, 58 Montg. 181 (1942), upon which Walters relies, are patently inapposite factually.

A review of this record convinces us that there is not even a scintilla of proof of any fraud, concealment or deception such as would justify the invocation of the doctrine of estoppel to toll the running of the statute. On the contrary, this record, clearly and distinctly, indicates that Walters slept on their rights and took no steps whatsoever toward the recovery of compensation for the injuries suffered by their child. They made absolutely no effort to contact the insurance company after the initial and sole visit of the adjuster. They finally contacted the insurance company approximately two and three-quarter years after the happening of the accident. Highly significant and indicative of Walters' supine negligence, lassitude and lack of diligence is the uncontradicted fact that, even after they had been notified that the insurance company could not aid them in the matter, they waited for approximately fourteen months before they instituted this action. It is indeed unfortunate that the severe injuries suffered by this child cannot be redressed; the fault however, lies not with the insurance carrier or Ditzler but with the parents of the child.

Unless the legislative mandate embodied in the statute of limitations is to be completely ignored or circumscribed by judicial subterfuge, Walters' cause of action has been irretrievably barred by their own lack of vigilance.

Judgment affirmed.

DISSENTING OPINION

MUSMANNO, Justice.

On July 2, 1958, Daniel J. Walters, four years of age, was playing, with other children, on a bridge which spanned the Sieglock Brook in the northern part of Lancaster County. The children would drop flowers into the brook on the upstream side of the bridge and then joyfully race to the other side of the bridge to see the flowers pass by on the bosom of the stream on its way to river which would eventually pour into the parent body of waters far away. While darting from the upstream to the downstream side of the bridge, Daniel was struck by a car being driven by A. F. Ditzler, the nominal defendant in this case.

In an instant, the carefree boy, who had been in full possession of all his faculties and in full vigor of health, became a limp and helpless mite of anatomy, destitute of physical and mental vitality. He lost the power of speech and locomotion. Young as he was, he was nor pushed back into helpless babyhood. He became a floating chip of humanity on the stream of remorseless time.

A. F. Ditzler, the driver of the car, manifested utmost sympathy for the child and his parents, and visited the child in the hospital almost daily for a long period of time. He informed William B. Walters, father of young Daniel, that he carried insurance and he was sure the insurance company would take care of all bills and losses because 'that's what he paid premiums for.'

A month and a half after the accident, Edward Strez, adjuster for the defendant's insurance company, (Harleysville Insurance Company), called...