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NESBITT v. ERIE COACH COMPANY (11/10/64)

decided: November 10, 1964.

NESBITT, APPELLANT,
v.
ERIE COACH COMPANY



Appeal from judgment of Court of Common Pleas of Erie County, Feb. T., 1962, No. 431, in case of Olive K. Nesbitt v. Erie Coach Company.

COUNSEL

William G. Sesler, with him Daniel L. R. Miller, and Bryan, Joslin, Bryan & Sesler, and Washabaugh, McClure & Miller, for appellant.

John E. Britton, with him Gifford, Graham, MacDonald & Illig, for appellee.

Bell, , C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Eagen

[ 416 Pa. Page 92]

The plaintiff-appellant was injured while riding as a passenger on a bus of the defendant company. The accident occurred on July 11, 1959, but this action for damages was not instituted until January 19, 1962.

The defendant pled the statute of limitations and the plaintiff replied that conduct on the part of the defendant's agents induced the delay in bringing the action, and the defendant was, therefore, estopped from claiming protection of the statute. The defendant filed an answer denying these allegations.

Depositions were then taken of the plaintiff, and of the insurance adjusters who had interviewed the plaintiff during the period of investigation and negotiations towards settlement. Following this, a stipulation was filed of record requesting the court to determine the matters in controversy on the pleadings and testimony taken, as if a motion for judgment on the pleadings had been made by the plaintiff.

After argument, the court entered judgment in favor of the defendant. This appeal followed.

A study of the lower court's opinion indicates that it did not resolve the factual conflict in the testimony offered in deposition, but rather concluded, as a matter of law, that the testimony did not establish sufficient facts to warrant an estoppel. With this conclusion, we do not agree.

The statute of limitations for the institution of an action for personal injuries which do not result in death is two years, Act of June 24, 1895, P. L. 236, § 2, 12 P.S. § 34. However, if through fraud or concealment the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of limitation of action: Plazak v. Allegheny Steel Company, 324 Pa. 422, 188 A. 130 (1936); Schaffer v. Larzelere, 410 Pa. 402 189 A.2d 267 (1963). The burden of proving the existence of such fraud or concealment is

[ 416 Pa. Page 93]

    upon the asserting party by evidence that is clear, precise and convincing: Hertz Corp. v. Hardy, 197 Pa. Superior Ct. 466, 178 A.2d 833 (1962); Bonfitto v. Bonfitto, 391 Pa. 187, 137 A.2d 277 (1958). It is also well established that mere negotiations toward an amicable settlement afford no basis for an estoppel, nor do mistakes, misunderstandings or lack of knowledge in themselves toll ...


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