
    References por Points in Headnotes
    
      DiGIOVANNI v. YACENICK.
    1. Limitation op Actions — Service op Complaint and Summons-Tolling Statute.
    Statutes of limitation are tolled for no longer than 90 days when the complaint is filed and a copy of the summons and complaint, in good faith, are placed in the hands of an officer for immediate service (CLS 1961, § 600.5856[3] ).
    Beperences por Points in Headnotes
    [1, 2] 34 Am Jur, Limitation of Actions § 258.
    Tolling of statute of limitations where process is not served before expiration of limitation period, as affected by statutes defining commencement of action, or expressly relating to interruption of running of limitations. 27 ALB2d 236.
    [3] 34 Am Jur, Limitation of Actions § 231.
    [4] 34 Am Jur, Limitation of Actions §§ 231, 234.
    '5] 34 Am Jur, Limitation of Actions §§ 230, 231, 234, 418, 420.
    '6] 34 Am Jur, Limitation of Actions §§ 411-413, 418.
    ’7] 34 Am Jur, Limitation of Actions §§ 230, 231, 234, 258, 411-413,
    
      2. Same — Service of Summons and Complaint — Officers—Tolling Statute.
    The failure to place summons and complaint in the hands of an officer who eould make a valid service of process preeludes application of statutory provision tolling the general statute of limitations for not more than 90 days (CLS 1961, §§ 600-.5805, 600.5856[3]).
    3. Same — Fraudulent Concealment.
    Fraudulent concealment by person liable for any claim of the existence of such claim or of the identity of any person who is liable for the claim, from knowledge of person entitled to sue on claim, extends the time for commencement of action so that it may be started any time within 2 years after the time the person who is entitled to bring the aetion discovers, or should have discovered, the existence of the claim or identity of the person who is liable for the claim, although aetion would otherwise be barred by period of limitations (CLS 1961, § 600.5855).
    4. Same — Tolling of Statute.
    Fraudulent concealment, suggest as used in statute extending time in which to commence an aetion, means employment of artifice planned to prevent inquiry or escape investigation and to mislead or hinder acquisition of information disclosing a right of aetion (CLS 1961, § 600.5855).
    5. Same — Fraudulent Concealment — Extension of Time.
    Eepresentations of defendant’s counsel as to prospects of settlement of aetion so that plaintiff’s action was dismissed for laek of progress because of his reliance on the representations held, not a fraudulent concealment entitling plaintiff to an extension of time within which to commence another aetion under statutory provision extending time by 2 years (CLS 1961, § 600.5855).
    6. Same — Estoppel—Evidence—Negotiation for Settlement.
    Statements and actions of counsel for defendant which contain no express or implied promise by the party charged to pay or settle the claim but only to negotiate for settlement held, insufficient to afford a basis for establishing an equitable estoppel to assert defense to statute of limitations (CLS 1961, § 600.5005).
    
      7. Same — Tolling oe Statute — Fraudulent Concealment — Estoppel.
    Grant of motion for accelerated judgment in second lawsuit for personal injuries started over 3 years after the accident occurred and when the first suit was dismissed for lack of progress held, proper, the statute of limitations not being tolled, where the record fails to disclose that the summons and complaint wore plaeed in hands of an officer for valid service of process, the statements that a settlement conference would be scheduled do not constitute fraudulent concealment, and the statements containing no express or implied promise by party charged to pay or settle but only a promise to negotiate for settlement are not sufficient to raise equitable estoppel (CLS 1961, §§ 600.5805, 600.5855, 600.5856[3]).
    Appeal from Common Pleas Court of Detroit; Pernick (Joseph J.), J.
    Submitted Division 1 June 9, 1967, at Lansing.
    (Docket No. 2,557.)
    Decided March 20, 1968.
    Declaration by Nick DiGiovanni against Fred Steve Yacenick for injuries sustained when the automobile he was driving was struck by defendant. Judgment for defendant.
    Affirmed.
    
      Metry, Metry, Sanom, Ashare S Goldman, for plaintiff.
    
      Eggenberger & Eggenberger, for defendant.
   J. H. Gillis, J.

Plaintiff Nick DiGiovanni, while driving an automobile on October 10, 1962, was struck in the rear by an automobile owned and operated by defendant, Fred Steve Yacenick. A chain collision resulted and plaintiff’s vehicle was forced into a vehicle owned by one Victor Nowinski.

In March of 1964 a subrogation action was commenced in common pleas court by Nowinski’s insurance carrier against both the plaintiff and the defendant herein, The following month DiGiovanni instituted an action against Yacenick in the common pleas court. Discussions and negotiations between the parties with the purpose of settling all pending litigation were then begun. Yacenick’s counsel during the negotiations contended that Montgomery Ward & Company had negligently repaired the brakes of his client’s vehicle. DiGiovanni took no further action on his suit commenced in April and it was dismissed for lack of progress. Thereafter DiGiovanni learned that the subrogation claimant and Yacenick had settled their differences and had dismissed their lawsuit. In the pleadings filed in DiGiovanni’s action of April 1964, Yacenick’s address was listed as Mt. Clemens, Macomb county, Michigan. No return of service was ever made. On November 9, 1965, DiGiovanni filed a new lawsuit against Yacenick in the common pleas court for the city of Detroit and service by alias summons was made on Yacenick on March 7, 1966. Yacenick then moved for accelerated judgment pursuant to GCE 1963, 116.1(5), which was granted on April 7, 1966, on the grounds that DiGiovanni’s action was barred by a 3-year statute of limitations applicable in personal injury actions.

The narrow issue presented on appeal is whether the statute of limitations applied to DiGiovanni’s second lawsuit, requiring the trial judge to grant the motion for accelerated judgment.

DiGiovanni contends that the statute of limitations was tolled for 3 reasons: (1) the first suit was filed and a copy of the summons and complaint in good faith were placed in the hands of an officer for immediate service, PA 1961, No 236, § 5856(3) (CLS 1961, § 600.5856 [3] [Stat Ann 1962 Eev § 27A.5856 (3)]); (2) Yacenick’s misrepresentation that a settlement was imminent constituted a fraudulent concealment of the existence of the claim, PA 1961, No 236, § 5855 (CLS 1961, § 600.5855 [Stat Ann 1962 Rev §27A.5855]); (3) the failure of Yacenick to give notice to DiGiovanni of the dismissal of the subrogation claimant’s lawsuit gave rise to an equitable estoppel barring the defense of the statute of limitations.

Good Faith Attempt at Service

In support of plaintiff’s first position he relies on CLS 1961, § 600.5856(3), supra, which reads:

“The statutes of limitations are tolled when * * *
“(3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.”

He argues that pursuant to the above section the 3-year statute of limitations was tolled for 90 days after the first suit was instituted and that while the statute may have continued to run after this 90-day period, it would, at the very least, have extended the period within which a suit could be instituted to 3 years and 90 days after the date of the accident and therefore the second suit could have been commenced up to and until January 10,1966.

Defendant, in reply to this argument, contends that plaintiff’s argument is based on the fallacy that the summons and complaint in good faith were placed in the hands of an officer for immediate service. With this argument we agree. The record fails to disclose that the summons and complaint were placed in the hands of a Macomb county officer who could make a valid service of process in that county. The statute, therefore, was not tolled by the commencement in 1964 of the first lawsuit between the parties hereto.

Fraudulent Concealment

Plaintiff also contends that the statute of limitations is suspended in the instant case for fraudulent concealment on the part of defendant, and in support thereof relies on CLS 1961, § 600.5855, supra, which reads:

“If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.”

Plaintiff in effect argues that he was lulled into a false sense of security by the defendant’s counsel, who plaintiff contends stated that a “settlement can be arrived at with all the parties concerned” and that the attorneys for the defendant and the subrogation claimant agreed that a settlement conference would be scheduled in the future. Plaintiff contends that he allowed the first lawsuit to be dismissed because of his reliance on the representations of the defendant’s counsel. However, the fraud sought to be remedied by CLS 1961, § 600.5855, supra, consists of the concealment of the existence of a claim or the identity of a potential defendant. In Draws v. Levin (1952), 332 Mich 447, the Supreme Court reviewed some of the guidelines followed in determining whether or not a statute of limitations has been tolled by fraudulent concealment by the party charged with the concealment and stated at p 453:

“ ‘Fraudulent concealment means employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of the information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent.’ ” (Quoting DeHaan v. Winter [1932], 258 Mich 293, 296.)

Since the facts in the instant case do not fall within the above category, DiGiovanni cannot rely on OLS 1961, § 600.5855, supra, to bar the defense of statute of limitations.

Equitable Estoppel

DiGiovanni argues that Yaceniek’s conduct has estopped him from raising the defense of statute of limitations. Such an argument was considered by our Supreme Court in Yarger v. City of Hastings (1965), 375 Mich 413, which held that the facts alleged were not sufficient to raise an equitable estoppel. In this case, as in Yarger, supra, there is no express or implied promise by the party charged to pay or settle the claim but only to negotiate for settlement. Yaceniek never admitted liability in this case and, as early as 1963, by letter directed to DiGiovanni’s counsel denied liability. Yaceniek and his counsel did not attempt to conceal the existence of the claim or his identity or whereabouts. Further', as in Yarger, supra, the facts of the accident were not within the special knowledge of the party charged and there was no fiduciary relation between the parties. We therefore conclude under the facts of the instant case that there is no basis for equitable estoppel to bar a defense of the statute of limitations.

Affirmed. Costs to appellee.

Quinn, P. J., and McGregor, J., concurred. 
      
       PA 1961, No 236, § 5805 (CLS 1961, § 600.5805 [Stat Ann 1962 Ecv § 27A.5805]).
     