The opinion
Baker, J.,
dissenting. I am unable to agree fully with the opinion of the majority of the court. That opinion affirms in toto the superior court decree appealed from which finds, among other things, that respondents are in default of compensation payments allegedly due petitioner for total disability since August 10, 1951. It is my judgment that on the peculiar and undisputed facts of this case respondents, as a matter of law, are in default of such payments only for the period between August 10 and August 28, 1951 and also after March 12, 1952. In my opinion petitioner is estopped from claiming and obtaining payments of that nature covering the period between August 28, 1951 and March 12, 1952. I concur, however, with the remainder of the majority opinion.
The facts are generally as stated therein. After being-operated on for hernia petitioner returned to work about August 13, 1951. From then on with the éxception of a few days when changing jobs he worked continuously up to the time of the superior court hearing, receiving an average-weekly wage equal to or greater than the one he received when he was injured. On August 13, 1951 his attorney voluntarily notified the claim adjuster for the employer’s insurance carrier, a respondent herein, that petitioner had returned to work. It seems reasonable to construe this action at least as a suggestion and an expressed expectation that the adjuster would take such steps to clarify petitioner’s situation as are ordinarily employed in such circumstances. Evidently the adjuster understood and viewed the situation in that light because shortly afterward he had *141 prepared the necessary suspension agreement or settlement receipt which on August 28, 1951 he properly mailed to petitioner’s attorney rather than to petitioner himself. However, having received no reply of any kind within a reasonable time the adjuster thereafter wrote five letters to the attorney regarding the status of the matter, the last one on February 4, 1952. About March 12, 1952 the adjuster was informed that petitioner would not execute the agreement or receipt because he complained of pain in his legs. The petitioner testified in substance and without denial that it had never been called to his attention nor had he been informed that a suspension agreement had been submitted to his attorney.
In several cases this court has discussed the general principles of law relating to estoppel. In Hunt v. Reilly, 24 R. I. 68, it is stated at page 71: “The inducement of another to act; the omission to speak only when there is a duty to speak, with knowledge of the circumstances, are the recognized elements of an estoppel.” In Hall v. New York, New Haven & Hartford R. R., 27 R. I. 525, the following language appears at page 529: “There is also a species of estoppel in pais known as estoppel by silence, which arises in a case where a person, who, by force of circumstances, is under a duty to another to speak, refrains from so doing and thereby leads the other to believe in the existence of a state of facts in reliance upon which he acts to his prejudice.” And in Personal Finance Co. of Providence v. Henley-Kimball Co., 61 R. I. 402, the court stated at page 411: “In cases where such an estoppel in pais has been recognized and applied ordinarily facts are present which show some affirmative conduct or statement on the part of the person against whom the estoppel is set up, directed to the person who is seeking to establish the estoppel, which conduct or statement caused the latter person to change his position to his loss or injury. Also, silence on the part of one upon whom there is a duty to speak and make facts known, if damage follows, will likewise usually create such an estoppel.” See also 31 C.J.S., Estoppel, §87, p. 304.
*142 In the above-cited cases, after consideration of the facts appearing therein, this court in two of them held that no estoppel had been shown but in the other case supported the claim of an estoppel. It is clear that each case of this kind must rest on its own facts. In the instant proceeding the decisive question is whether petitioner’s attorney was, in the circumstances, under a duty to speak and make the facts known to the adjuster of the insurance carrier, after receiving from him for execution the suspension agreement or settlement receipt. It cannot be questioned that petitioner is bound by the acts of his duly appointed agent, the attorney who was representing petitioner in the handling of the litigation.
It is well settled that mere silence alone will not raise an estoppel when there is no duty or opportunity to speak. A person is ordinarily not bound to respond to every written statement, charge or communication made to him, and his failure to do so does not necessarily amount to an acquiescence in it so as to create an estoppel. An example of a typical case so holding is Furst v. Carrico, 167 Md. 465 . In my judgment, however, the facts in that case and in cases of a similar nature are so different from the facts here that they are clearly distinguishable.
The instant case is not one in which some letter or other writing containing statements or charges by another is, without previous notice, sent to a person who does not see fit to answer them. Here petitioner’s attorney himself, without having been asked, brought to the attention of the insurance carrier’s adjuster the fact that petitioner had returned to work, thus starting in motion the train of circumstances which thereafter followed and for which such attorney had a responsibility. The adjuster was not the original moving party.
In view of the circumstances appearing in this case, I am of the opinion that the adjuster had a reasonable right to expect that in due course he would receive some response from petitioner’s attorney after the agreement or settlement *143 receipt had been sent to him on August 28, 1951. The fact that thereafter the adjuster attempted to obtain some answer from the attorney was not unreasonable conduct considering all the circumstances. It is my judgment therefore that by reason of the particular facts of this case petitioner's attorney was under a duty to speak and make known the facts to the adjuster within a reasonable time after receiving the agreement or receipt. However, he did not so speak, failing seasonably to make known the fact that petitioner would not sign the agreement or settlement receipt, which conduct resulted in prejudice and damage to the respondents.
Israel H. Press, Isadore S. Horenstein, for petitioner.
Boss & Conlan, Francis W. Conlan, for respondent.
Consequently it is my opinion that petitioner is estopped from claiming and obtaining from respondents payments of compensation for total disability covering the time between August 28, 1951 and March 12, 1952 during which he was working and receiving his full weekly wages.
Capotosto, J., concurs in the dissenting opinion of Mr. Justice Baker.