Schaefer v. Kerber

DORAN, J.

This is an appeal from the order of dismissal. In this action for damages the demurrer to the amended complaint was sustained with 10 days to amend. No amended

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complaint was filed and about three months later the action was dismissed on motion of defendant.

It appears from the record that the alleged injury occurred on May 8, 1948, and the action was filed June 17, 1949. It is alleged that the conduct of the insurance company, acting as defendants ’ agent, tolled the statute of limitations. In that connection the complaint in substance alleges, as recited in appellant’s brief, “that in February or March, 1949, the defendant’s insurance company requested the plaintiff to submit to a physical examination by its doctor and the plaintiff did so submit to an examination; (2) that prior to March 1, 1949, the defendant’s insurance company informed the plaintiff that it was necessary to secure the approval of the home office before the claim could be settled, and thereby caused the plaintiff to believe that the only question in dispute was the amount of the claim; (3) that prior to May 8, 1949, the company discussed with the plaintiff only questions concerning the extent of her injuries, the amount of her claim and did not advise the plaintiff that any doubt existed as to legal liability; (4) that on or about March 1, 1949, the company told the plaintiff that she would be informed as to the company’s disposition of her claim; (5) that the company knew the plaintiff had employed no attorney and was endeavoring to negotiate a settlement without an attorney; (6) that plaintiff did not know her claim for personal injuries was barred in a year; (7) that between March 1, 1949, and May 8, 1949, the plaintiff endeavored to communicate with the company to ascertain whether the company would pay her claim; (8) that relying on the insurance company, the plaintiff did not seek legal advice; (9) that the company did not inform the plaintiff of the disposition of her claim until or about May 16, 1949, at which time the company advised the plaintiff that it recognized no liability and the claim was outlawed.” It is also alleged “that the purpose of said company, acting as defendant’s agent, in failing to notify plaintiff of the disposition of her claim and in representing to the plaintiff that the only question involved .was a question of the extent of her injury and the amount which the company would pay on said claim was to prevent the plaintiff from filing a lawsuit until after the statute of limitations had run so that the claim would be outlawed. That by reason of the conduct of the agent duly authorized by the defendants to act on behalf of the defendants as herein set forth, said defendants are estopped to set up the statute of limitations.”