.Dissenting Opinion by
Me. Justice Bell:I must dissent because (1) I disagree with some of the facts stated in the majority opinion, and (2) with its interpretation of two prior decisions of this Court, and (3) because, without any compelling statutory or decisional authority, it produces injustice.
I disagree with the majority’s statement that “The record . . . discloses that the employe received his fatal injuries while in the course of his employment by the City.” In the first place that question was never raised by the City either in its pleadings, or at the trial, or at any time until long after a verdict had been obtained against it and judgment entered thereon; and in the second place the majority’s conclusion is, at best for the City, merely an inference from the evidence *645which, under proper instructions, would be a question of fact for the jury.
If an action in trespass is brought solely against a City or any other employer who has Workmen’s Compensation, the defendant is required to plead or to affirmatively defend on the ground of Workmen’s Compensation: Anderson v. Carnegie Steel Co., 255 Pa. 33, 99 A. 215; Walters v. Kauffman Department Stores, Inc., 334 Pa. 233, 5 A. 2d 559; Butrin et al. v. Manion Steel Barrel Co. et al., 361 Pa. 166, 63 A. 2d 345. See to the same effect: Venezia v. Philadelphia Electric Co., 317 Pa. 557, 177 A. 25; Welsch v. Pittsburgh Terminal Coal Corp., 303 Pa. 405, 154 A. 716.
If a City is joined as an additional defendant and wishes to limit its liability to Workmen’s Compensation, all the hitherto decided cases have likewise required that that defense be raised in the pleadings or at the trial, or that a point be reserved by the employer at the trial, for a subsequent determination of that issue: See cases hereinabove cited and Maio v. Fahs, 339 Pa. 180, 14 A. 2d 105; McIntyre v. Strausser, 365 Pa. 507, 76 A. 2d 220. This is fair and just because it enables plaintiff to meet the defense and prove (if able) that he was not covered by Workmen’s Compensation for any one of several reasons including, inter alia, that he was not employed by the City or that he was not in the course of his employment at the time of the accident. To hold that the Maio and McIntyre cases support the present majority opinion is, I believe, erroneous.
Under the majority’s theory, I cannot see how it will be possible for a Judge to accurately charge the jury if the additional defendant has Workmen’s Compensation and “the issue of plaintiff’s employment or outside the course of his employment” is raised. The majority believe, no matter how it is attempted to be *646disguised, that the defense of Workmen’s Compensation can never be waived and it is never too late to raise it. With this, I cannot agree. I believe the defense of Workmen’s Compensation is like fraud or the statute of limitations or any other affirmative defense — like them it must be raised by the employer, and like them it can be waived; and it will be waived unless properly and timely raised by the defendant. Furthermore, why should there be any distinction in reason, logic or principle between a case where an employer was sued singly or with another defendant, so far as the raising of the affirmative defense of Workmen’s Compensation by the employer is concerned?
In the present case, we repeat, the issue of Workmen’s Compensation was not raised by the pleadings; and it was not raised by the City either in its pleadings or by a proper and timely motion at trial, or by the reservation of a right to raise the question, or to litigate the issue in a subsequent proceeding; it was raised by the City for the first time, after a verdict and judgment had been entered against it and after time for appeal had expired, viz., more than 90 days after the judgment had been entered.
The effect of the majority opinion is that (a) the City, years after a judgment has been entered against it, may, if it then alleges Workmen’s Compensation liability, have the judgment against it marked satisfied of record; and (b) the issue of whether the plaintiff was covered by Workmen’s Compensation i.e. was in the course of his employment at the time of the accident can, in the present case and others like it, never be tried. This is not good law and it certainly is not justice.