Forrest v. Philadelphia Rapid Transit Co.

Citations

• 261 Pa. 383
• 104 A. 663
• 1918 Pa. LEXIS 752

Syllabus

<p>Negligence — Death—Substitution of administratrix as plaintiff —Abatement—Laches—Waiver—Presumption—Trial eight years after issue — Act of April 15,1851, P. L. 669, Sec. 18■ — Construction —Practice, C. P. — Trial—Evidence.</p> <p>1. Where an action is brought for personal injuries and before the trial of the case the plaintiff dies, his administratrix may be substituted as plaintiff and such substitution may take place more than one year after the death of the decedent. Section 18 of the Act of April 15, 1851, P. L. 669, authorizing the substitution' does not fix the time in which substitution shall be made and the court cannot invade the province of the legislature and fix a time by construction.</p> <p>2. The usual and proper practice, where unreasonable delay in prosecution or laches is urged as the ground for abatement of a suit, is a motion or rule taken by defendant and not objection to testimony on the trial of the cause. The defendant can and may waive the default- or laches and go to trial on the merits and where he takes no steps to' abate the action until the plaintiff has incurred the expense of the preparation for the trial, he cannot at the trial defeat the plaintiff’s right to recover by objection to evidence of her authority to bring suit.</p> <p>3. In an action to recover damages for personal, injuries, it appeared that plaintiff brought suit on March 26, 1907, for injuries sustained in July, 1906; that the statement was filed and a rule to plead was issued on June 3, 1907, that defendant pleaded “not guilty” on June 17, 1907; that plaintiff died on November 2, 1907,</p> <p>. and that his death was suggested in 1915, and on June 5, 1916, his death was again suggested of record and his administratrix was substituted as plaintiff; that at the trial of the ease, defendant objected to the admission in evidence of' the letters of administration on the theory that the plaintiff’s right to be substituted was barred because not asserted within one year