*1 accomplished could re- and should have been without to sort evidence dehors the will. very judge in able the court below did consider in-
extrinsic as an aid in construction of evidence respect stant this the court below erred. will; carefully We have considered the tax clauses provisions legacy-bestowing this will to determine whether furnish internal evidence sufficient presumption. statutory We conclude that rebut the provisions testamentary do not those overcome presumption that in Mrs. Jaekel exercised this will her power appointment. legislatures—1879,
Three 1917 and 1947—haveseen impose statutory presumption; fit wisdom legislature, not for for the thereof is a matter unequivocally dictates that Court. The instant statute part of donee of a intent on the the source of an appointment power power be the not to exercise provisions language in the instant will will; expressly either not to be found, such intent is apply implication. necessary must We, therefore, statutory presumption in her did that Mrs. Jaekel will appointment. power her exercise pay costs. Estate Decree reversed. Ditzler. Appellant, v.
Walters, *2 Before 1966. Bell, C.J., November Argued O’Brien Cohen, Eagen, Jones, Musmanno, JJ. Roberts,
John Milton him with Charles Foltz Ranch, Herr, appellants. Appel, Appel, Herr Ranch, & John R. him with Bernard M. Gibbel, Zimmerman, *3 Myers and Zimmerman, Zimmerman, & for Gibbél, appellee. March 1967: by 14,
Opinion Mr. Justice Jones, July aged years, On Daniel J. four 2, 1958, Walters, traversing highway upon bridge a located a near while County, by Lancaster was struck a motor Brickerville, operated by very F. Ditzler A. and sustained vehicle injuries. personal serious
Following Ditzler told William accident, by that he insured the child’s was father, Walters, Company Harleysville and that he sure Insurance take care of it would “because the insurance premiums pay for”. Six after weeks [I] what that’s child a condition of accident—-when adjuster helplessness—an physical complete called at nursing bills were discussed Certain home. Walters’ adjuster by Walters; to the over turned and were adjuster that the com- told Walters insurance then “piecemeal”, pay that it have pany bills did not by “lump reason of the settlement”, sum to be any minority, would have to be settlement child’s approved by the court and that no settlement could be days made until the child was “rehabilitated”. Two adjuster nursing returned later, bills to the April years Until Walters. 17, 1961—two and nine months the accident—there was no con- after further adjuster tact between the insurance carrier or its the Walters. April
On Mrs. Walters 17, 1961, wrote a letter to company stating, the insurance inter alia: “We would days like make settlement at this time”. Eleven later, wrote to the Walters stating, inter alia: “We have reviewed our file re gard Pennsylvania to this and find that matter, expired Statute1 has and we will be unable to be of any you.”2 service years
Fourteen months later—and three and eleven present months after the date of the accident—the trespass action was instituted the Court of Common County against Pleas Lancaster Ditzler. When complaint, acting through filed their Ditzler, containing filed an answer carrier, his new raised the defense of matter which the statute of limi- reply matter tations to which new Walters filed a estopped alleging Ditzler was to raise the defense of the statute reason the conduct of the insurance adjuster he visited the when Walters’ home August judg- Ditzler filed a motion 1958. *4 pleadings was ment the which dismissed. reply allegations amended then filed an wherein the 1 pro- 1895, 236, §2, 24, P. h. 12 P.S. which §34 Act of June year period which to within institute a suit for the vides a two injuries. personal recovery damages for 2 transpired of the events which viewed version is factual parents, light to the child and his such fac favorable most developed hearing having at a in the court below been tual version estoppel an barred the defense of the stat whether determine ute.
449 as to the and adjuster’s alleged misleading fraudulent an conduct were and there was particularized wherein additional minority reason of the allegation that, by and of the the bar of the statute incompetency child, was tolled. After a entered the court below hearing, of Ditzler From judgment favor and Walters. against that taken. judgment appeal instant
As presented Walters’ the issue presented counsel, is: an in- where insurance stated that adjuster surance will not that company bills pay “piecemeal”, until the child “rehabilitated” is there cannot be a and settlement would company only make a “lump subject ap- sum court settlement”, proval because of child’s where minority, led to parents of the child were thus believe that pay claim, conduct of such adjuster’s fraudulent, misleading Ditzler from estop nature as to deceptive raising of limitations? defense of the statute legal are certain well settled pertinent Presently or mere (a) misunderstanding principles: mistake, do not toll running of knowledge lack v. Pa. 410 Larzelere, of limitations: statute Schaffer 267 and authorities therein 189 A. 2d (1963), 405, 402, deception concealment through fraud, cited; (b) if, injured person lulls an an insurance of facts, security into a sense so representatives or his then the is relaxed, person’s vigilance such v. Larzelere, the statute: evoking from estopped Schaffer therein cited; (c) and authorities p. 405, supra, estoppel and effect an toll will fraud inclusive sense, in the strictest i.e., fraud not be need fraud in be the broad may but deceive, intent of an deception: unintentional of an inclusive i.e., sense, Pa. 204 A. 89, 416 2d Co., 96, Erie Coach v. Nesbitt Pa. 160 A. 539, Cornell, v. Schwab ; (1964) operative becomes only an estoppel (d) 449 (1932); *5 450 Bon deception
in clear
of
or concealment:
cases
fraud,
&
391 Pa.
v.
10 Pa. D. C. 2d
aff’d
Bonfitto,
598,
fitto
Applying it is evident that the doctrine of situation, estoppel cannot be invoked and that successfully running of the statute of limitations has not been tolled. We with the court agree “According below: the facts from as found the court testimony, [Walters] of precise have not met the burden proving by clear, evidence the existence of such fraud convincing in- estop or as would and his concealment [Ditzler from Limita- pleading surance Statute of carrier] no factual that dispute negotia- tions. There is an amicable tions were toward settlement. merely . . given bills . were discussed and to . . . nursing them to who returned adjuster, [Walters] no 1958 and there is evidence other August 18, sent to insurance carrier accrued bills were [Ditzler’s] . . nor there evidence that any ., its adjuster, through its carrier, adjuster, or his [Ditzler] again see .... How- ever said [Walters] as held duty unfortunate it was ever [Walters] Pa. 402 in 410 asserting v. Larzelere, Schaffer reasonable use all against of action cause [Ditzler] facts inform themselves properly diligence right which the upon recovery and circumstances Walker, supra, concurring opinion in the late Chief bis In any time, legislature at can “. . . said: well Justice Jones persons disability under from fit, an exclusion reestablish it sees (p. 152) of limitations.” operation the statute and to prescribed is based the suit institute within *6 and period that mere misunderstand statutory mistake, toll or lack of is not sufficient ing knowledge of of Nesbitt v. Erie the statute limitations.” running Coach A. 2d Amrovcik 416 Pa. 204 Co., (1964), 473 89, v. Metropolitan Superior Insurance 119 Pa. Co., Life Ct. Bodenstein’s 58 (1935) A. 727 and 176, Estate, 180 Mont. Co. L. which Rep. upon (1942), are patently inapposite relies, factually.
A of there review this record convinces us that is not conceal- even a scintilla of of proof any fraud, ment or deception such as would the invocation justify of the doctrine of to toll of the estoppel running dis- statute. On the and clearly contrary, record, this on slept rights indicates that Walters their tinctly, of steps and took no toward the recovery whatsoever compensation for their child. injuries by suffered made no effort to contact the insurance They absolutely adjuster. after and sole visit of the the initial approxi- contacted the insurance They finally happen- and after mately three-quarter years two and indicative significant the accident. ing Highly supine of Walters’ lassitude lack negligence, after the uncontradicted fact even that, is diligence notified that been they ap- in the waited they
could not aid them matter, months before instituted fourteen proximately It indeed unfortunate severe this action. is redressed; child cannot be by suffered injuries or carrier lies not with however, fault of the child. parents Ditzler but with in the mandate embodied the legislative Unless completely ignored to be of limitations Walters’ cause subterfuge, judicial by circumscribed barred own lack irretrievably by been has action of vigilance. affirmed.
Judgment Dissenting Opinion by Mr. : Justice Musmanno On Daniel J. four July 2, years Walters, with other on a age, bridge playing, children, spanned the Brook in northern Sieglock part Lancaster children flowers County. drop into the brook on upstream bridge side then race to the other side of the joyfully bridge see the on the pass flowers bosom of the stream by its way pour river which would into eventually parent of waters far While from body away. darting upstream to the downstream side of the bridge, Daniel Ditz- was struck a car driven A. F. being by the nominal defendant in ler, this case.
In an the carefree who had been in instant, boy, full of possession all his faculties and full vigor of limp helpless became a mite of health, anatomy, destitute of physical and mental He vitality. lost power speech and locomotion. he he Young as was, pushed helpless was now back into babyhood. He be- came chip a the stream re- floating humanity time. morseless
A. F. the driver of the ut- Ditzler, manifested car, for most the child and his sympathy and visited parents, the child in the for hospital period almost a daily long of time. He informed William B. father of Walters, that he carried insurance and young he Daniel, sure the insurance would take care all premiums “that’s what he pays bills because and losses for.”
A a half after month and Edward accident, for the defendant’s insurance adjuster Strez, company, Insurance called (Harleysville Company), at a two car two-story, home, garage, Walters’ had into living quarters. The been converted mother of Mrs. William asked Walters, Strez about boy, the medical bills were they incurring payment replied Strez he would behalf. like to the child’s have already tlie bills accumulated and were turned him. Mr. over to Walters asked Strez when the bills adjuster replied paid, would be and the that the com- pany pay “piecemeal.” pay- for wouldn’t them The “lump be ment would made a sum settlement,” approved done until the this could be matter was boy Anyhow, “the a in court because minor.” adjuster any explained, there could not be immediate boy have until Settlement would to wait settlement. “rehabilitated.” days later Strez returned the bills a Two with returning I am bills for Walters, note: “Mrs. nursing Daniel. The amount of care to total the bills you. adjuster.” Thank Ed Strez, is $1104.75. boy receiving continued under constant care, operated by an the Lancaster at establishment
treatment Crippled County Society In for Children and Adults. operation boy April, an underwent his 1960, might eyes. informed there be Walters was need Mr. parents year operation. A later the felt for another physical stage boy which would war- reached with the insurance com- of settlement discussion rant They and were informed pany. about Mr. Strez asked place company, being his taken now left he had Mrs. wrote on to whom a Robert Dean, I “Dear Mr. Dean: am writ- April as follows: 1961, *8 concerning Daniel who was ing, Walters, our son, Hopeland. by by Archie We Ditzler, car driven a struck I at time. believe settlement to make like private nurses’ bills, record has a your ago. Ed Strez some time Mr. to them had sent we as Airy get To road. Schoeneck-Mt. on live We you after first you crossroad, left at the turn Schoeneck you reach Schoeneck Ephrata When pass on #222. right, house on the after the 7th in liveWe left. turn Elementary You School. can pass Schoeneck you telephone, by Denver, ANdrew, with us get touch in also Sincerely, AN7-7353. William Mrs. Walters R.D. #1 Pa.” Stevens, days company replied,
Eleven later the insurance traveling it effect, that wasn’t interested in the direc- imparted by tions Mrs. Walters because case had passed “Pennsyl- now of no the road return. The expired,” vania Statute had said. parents nothing
The Walters knew about the “Penn- sylvania by They Statute,” and were shocked the letter. rights did not what to know do and assumed that their recovery disappeared had also with the flowers their boy dropped Sieglock way into the Brook on the to the sea. Some time later a friend advised them to lawyer, consult a and so, suit June, 1962, against entered Ditzler. interlocutory proceedings unnecessary
After to dis- cuss the Court of Common here, Pleas Lancaster County Complaint plaintiffs ap- dismissed the and the pealed.
This Court has affirmed decision of the court stating: legislative below, “Unless the em- mandate completely bodied in the statute of limitations is to be ignored by judicial subterfuge, or circumscribed irretrievably Walters’ cause by action has been barred vigilance.” lack of their own Majority punitive The decision is a decision, merely adjudicatory punishes and not an one. It Mr. they placed faith Mrs. Walters in the in- company adjuster who surance called at home “lump and said that settlement be would made boy “rehabilitated.” sum” when Mr. he testified that understood “rehabilitated” “re- did Daniel covered.” When recover? hadn’t fact,
As a matter he recovered even when finally only filed. the suit was reason Mr. Walters *9 did he entered suit when he was that advised was by lawyer to a do so. Majority
The much of limita- makes of the statute if the tions as statute of limitations is written in the up sky, if one not look into the air to see does spelled anyone what is he but out cannot blame there, lightning repudiation for the himself will which years him if than strike down he waits for more two tragedy after has entered his home. knew nothing the statute limitations. an about He had eighth grade He education. had five small children; garage. sociological in a he lived renovated Neither his acquaint nor his limited studies him status would with a of limitations. say
I do not mean to that the statute would not knowledge actually apply him to unless of it was say brought I home to but do that statute is him, delaying filing one is deceived into of a tolled when points record case whole but lawsuit. and that is that William Walters hon- conclusion one estly insurance that the would take believed nothing that there was for him of the ease care company took the insurance action. The until do offending only told car, Ditzler, him, driver shortly accident that the insurance after the responsible damages, for but even at a time be subsequent two-year period happened to be At did following no time accident. would not be liable inform Walters April letter of 1961. course,
until, secretary of the Lancaster Coun- the executive Even Crippled Society Children and ty where Adults, receiving informed Mr. Walters boy treatment, good hands because of the inter- case his spoke company. .She of this vention experts If all the weather in a of times. number *10 area there will given say be no one can’t be rain, blamed for not an umbrella on carrying a sunshiny day. no
There for evidentiary support is the Majority’s statement that Walters was of guilty “supine negli- lassitude and lack of gence, diligence.” He was waiting for that in- day blessed of rehabilitation of which the surance had agent advised him. It not did come and in spite of the fact that in so, still remained boy a crib and a wheel unable to talk and no chair, the lad longer dropped who flowers into the creek, he had his inform wife company road it should follow reaching his humble home. sorrow-laden
While there no duty part of in- to inform surance Walters of the of company statute one could assume limitations, that, taken having cog- nizance of the case bills and by accepting receiving from its on the it report agent would advise case, Walters of the imminence of the expiration Good business period. procedure not statutory does humanitarian considerations. exclude on the fact Majority lays stress Walters file for months after did not suit notified being insurance of its company culpa- but by disclaimer, is so certain here as the bility neglect Majority In first assumes. insurance place, adjuster to believe that had led Walters could approval until there was an payments make no court. could well have believed that insurance take the initiative. When the him informed then its disinclination to do himself in a fog he felt bewilderment: anything, “Q. tell us now didn’t why you . . Will it you bring . June matter—until fif- 4, 1962—almost to them—this Well I A. didn’t I could later? know months teen Q. then . . Well what did you do about anything. do I do that? A. didn’t I didn’t anything awhile; know what to do.”
His wife was equally benumbed by the insurance “Q. action: did fifteen months company’s Why wait you you any- after were told that you going get weren’t A. letter. thing? quite we were shocked Well, didn’t justWe know which to turn what way dd.”
In a situation of this the law is not so kind, metal- harsh lically as the Majority Opinion would make it appear. It as true, Majority Opinion states, in order to toll that, limitations, *11 person aggrieved must show deception or con- fraud, cealment of in facts. the situation we However, have before “fraud” not us, word is to be in employed its strict sense of active and malicious deception. We stated this proposition very in Nesbitt specifically v. Erie Coach Pa. “In 96: order for Co., of estoppel applied doctrine to be in of the bar statute fraud concealment limitations, necessarily must this does not mean be established. However, fraud the strictest sense cm intent to encompassing deceive, but rather in the broadest sense which includes fraud ‘It not the an unintentional . . intention deception. but the natural estopped upon party effect an (Em- which party gives vitality estoppel.’” other phasis supplied) can one doubt that Strez’s statement any
How natural effect of persuading have the can make as clear as language him to Strez said, wait? could not pay that the insurance it, been re- disabled had boy until claim Walter’s mother did all that was father and The habilitated. their made whole boy again, to see possible humanly him at cribside, and studied watched solicitously they through for him his operations, cared tenderly they for magical rehabilita- day the time all waiting justice never arrived. them tion which Is be denied accepted at because face value what the insurance through agent, company, had the same in- said, premiums had received surance just Ditzler to a situation cover such as this one? Society parents, the Walters the Lancaster Ditzler, Crippled waiting Children were all for the insurance up responsibilities. company to In take the mean- its days like the Daniel months, flowers while, dropped Sieglock floating were out Brook, through company, the sea of time. The insurance passive allowing parents deception, were boy, ship to look for return of in- wrecked port surance knew would sail into the of contractual fulfillment. plaintiff
In the Nesbitt case the did not file his complaint until 30 months after the accident. The de- pleaded fendant The limitations. evidence through company, revealed its plaintiff. agents, had talked settlement with plaintiff adjuster, true in told the as is this case, payments only not make interim and that that it could lump paid all the one sum could be when facts were reviewing the record in ascertained. This Court, *12 adjuster] concealed [the said: “He the fact that case, nonliability. of considered the case one that the carrier Admittedly, did not mention the statute of he limita- before this visit he had discussed tions because this superior specifically point and was instructed with a inquired of and noted the He additional not to do so. Upon expenses leaving, been incurred. that had he said again phone and that her she should see that he would up. plaintiff anything turned if was never him again.” contacted family communicated with the Walters
Strez never again. said the Nesbitt case: “If This Court the opinion question in our true, above facts are circumstances could been the yet determined, has of conduct that the lead to the conclusion reasonably to unduly the plaintiff the defendant’s caused agents present of relax the her institution vigilance delay period. limitation action statutory time beyond a estoppel.” This would to an give rise in this ruling shouldn’t there be the same 'Why because case? “Equitable estoppel applies where, denied a is party that has been something done, fact: important or otherwise right plead prove an upon It 19 Am. is based Estoppel (1939). Jur. §34 ‘ representation held to a principle that “a person inequita- otherwise position made a where assumed, having ble to another consequences who, would result the circumstances to do under all right so ’ ” pp. (Nesbitt, thereon.” has faith relied case, good 95-96) Su 119 Pa.
In Ins. Co., Amrovcik v. Metro. Life an action perior brought Ct. plaintiff in policies under two permanent benefits liability payments refused surance. The insurance not filed proper plaintiff on the that basis was who the plaintiff, forms. There evidence that he forms because the proper had not filed illiterate, sup In company agents. misled said: Court Superior plaintiff’s claim, porting advantage take now “The cannot appellant proof,’ 'due it call may file failure to what plaintiff’s state directly by caused .the failure was such when -.'It agent. authorized appellant’s and actions ments contract a to a that party rule of law is a well settled ' obligátion his under escape liability cannot perform party the other has ground failed. lia of such to the establishment precedent condition upon of an action maintenance or to the bility failure.” caused himself has he where contract, *13 Tbe in insurance company the case at bar should permitted not be to take of a advantage situation it created. It should not be allowed plead limitations when its agent laid, bosom of the Walters family, promise foundation it would undertake financial at a liability time when slightest awareness facts showed conclusive- the appraisement of full ly financial liability more than two years away. The insurance agent saw Daniel young his crib and was informed boy’s parents of the road long which lay ahead, leading to rehabilitation. The insurance should permitted now be to build across that road the stone Repudiation. wall of
Mr. Justice joins Roberts dissenting opinion.
Reardon v. Meehan, Appellant.