Appeal, No. 4, March T., 1962, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1960A, No. 1453, in case of Earnest Gene Gunn, a minor, by Earline Gunn, his guardian, et al. v. John J. Washek. Judgment affirmed.
Hymen Schlesinger, for appellants.
Norman J. Cowie, with him Pringle, Bredin & Martin, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
The Court being evenly divided, the judgment is affirmed.
ING OPINION BY MR. JUSTICE MUSMANNO:
Earnest Gene Gunn, at that time 5 years of age, was injured on May 7, 1957, as the result of negligence attributed to John J. Washek, the defendant here. The parents of the child filed an action in trespass on November 6, 1959. The defendant pleaded the statute of limitations as New Matter. The plaintiffs replied to the new matter as follows: "The plaintiffs deny that all of the alleged causes of action set forth in the plaintiffs' Complaint are barred by the Statute of Limitations, Act of June 24, 1895, P.L. 236, § 2, 12 P.S. § 34; Act of March 27, 1713, 1 Sm. L. 76, § 1, 12 P.S. § 31. The plaintiffs aver on the contrary that the defendant is estopped from raising the bar of the Statute of Limitations. In further reply, Earline Gunn, the mother plaintiff, avers that approximately one week after the accident, a Mr. Makiars, an adjuster for the Keystone Insurance Co., the liability insurance carrier for John J. Washek, the defendant, came to the plaintiff's home and visited the plaintiff's home from time to time thereafter, telling Earline Gunn, the mother plaintiff, that the Keystone Insurance Co. would make a settlement of the case as soon as the minor plaintiff's doctor discharged him and advised the mother plaintiff not to engage an attorney until after the Keystone Insurance Co. had made an offer in settlement and that if the mother plaintiff was not satisfied with the offer of settlement that she could then retain an attorney and file suit. Earline Gunn, mother plaintiff, further avers that the minor plaintiff was discharged by the doctor in April, 1959 and she then attempted to communicate with Mr. Makiars by telephone but was never able to
find him in and although she left numerous messages for the said Mr. Makiars to return her call he never did so. The mother plaintiff further avers that no offer of settlement was ever received from the Keystone Insurance Co. and that the plaintiffs were misled by the conduct and actions on the part of the adjuster for the Keystone Insurance Co. as set forth above."
The Court of Common Pleas of Allegheny County regarded the reply as insufficient and entered judgment for the defendant, stating: "The question to be decided is: Did the adjuster lull the plaintiffs into such a false sense of security that, as the consequence of the adjuster's actions, plaintiffs allowed the two year Statute of Limitations to pass? We believe that he did not."
But a question of this seriousness cannot be decided upon a mere matter of belief. We have here a vital question of fact to determine. Did the insurance adjuster inform the mother-plaintiff, as is averred in the plaintiffs' reply, not to employ an attorney, sustaining her with empty promises until the fatal statute of limitations had struck down the ...