
    Foster v. The Baltimore & Ohio Rd. Co.
    (Decided February 20, 1933.)
    
      Mr. John W. Cowell, for plaintiff in error.
    
      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Hamilton, P. J.

The plaintiff in error, Bessie Foster, was plaintiff below, and the railroad company was the defendant.

The action grows out of the right to benefits from the relief department of the railroad company, which plaintiff claims is due her by reason of the death of her husband. She pleads that her husband was employed by the defendant company, and had been so employed for 16 years preceding the 10th day of November, 1923; that on that day, while in the discharge of his duties as foreman supervising the cleaning and oiling of engines, he was accidentally killed by being shot by some one unknown to plaintiff and the defendant; that at the time he was killed her husband, William Foster, belonged to the relief department of the defendant company, and was in good standing; that he was classed as second class, and thereby, under the rules- and regulations of said relief department, became entitled to a death benefit of $2,000.

Plaintiff pleads that on said 30th day of July, 1924, defendant company disputed the amount that plaintiff was entitled to receive, but admitted $1,000 to be due by virtue of said membership in the relief department, and paid the same to plaintiff without prejudice to her claim for the balance, and without prejudice to her bringing suit for the balance of $1,000.

The answer first denies that Foster was shot while in the discharge of his duties as foreman supervising the cleaning and oiling of engines. It then admits that at the time Foster was killed he belonged to the relief department of the defendant company, and was in good standing, and by virtue of his position was classed as second class, division D; that Foster designated the plaintiff as beneficiary in case of his death; but defendant denies that under the rules and regulations of the relief department plaintiff was entitled to a death benefit of $2,000, and says that under the rules and provisions of the relief department it was provided that benefits on account of accidental injury should be paid only when it was shown by evidence satisfactory to the superintendent that the injuries were received while the member was actually engaged in the performance of duty in the service to which he was assigned, or in voluntarily protecting the company’s property, and defendant states that it was further provided that the results of injuries received in any other manner than in the performance of the duty as aforesaid should be treated as sickness or death from natural causes.

The answer denies that Foster’s death occurred while he was actually engaged in the performance of his duty, or involuntarily protecting the company’s property, and asserts that therefore, under the provisions and regulations, the death of said William Foster was declared by the superintendent to be, and was treated as, a death from natural causes. The answer admits that defendant paid plaintiff the sum of $1,000.

By way of a further defense, the defendant alleges that the regulations of the relief department, by which Foster had agreed to be bound, provided that there should be two committees, known and designated respectively as the advisory committee and the operating committee, and that the regulations further provided that all questions of controversies between any parties or persons connected with the relief department, or the operation thereof, should be submitted to the superintendent, whose decision should be final, unless an appeal from such decision should be taken, either directly or through the advisory committee, to the operating committee, within 30 days after notice of such decision to such party in interest. The answer avers that said superintendent did decide that the plaintiff, under the rules and regulations of the relief department, was not entitled to accidental death benefits, but only to death benefits from natural causes; that plaintiff was duly notified of such decision on January 28, 1924; that said natural death benefits were duly paid to her; and that said plaintiff did not within 30 days after notice of such decision to her, appeal from such decision to the operating committee, either directly or through the advisory committee.

To the answer the plaintiff filed a reply denying all the allegations set up in the answer except such as are alleged in plaintiff’s petition to be true'. For further reply the plaintiff alleged waiver of the necessity for plaintiff to make any appeal to the advisory committee or to the operating committee.

A motion was filed to require the plaintiff to set forth the course of conduct constituting any waiver of the necessity of the plaintiff to make an appeal. Before the motion was heard, the plaintiff filed an amended reply, in which she again sets np a general denial and waiver by course of conduct, and details all the correspondence concerning the claim between her counsel and the superintendent, and alleges that the superintendent did not then or at any time make a final decision of the matter, and that the operating .committee decided that natural death benefits only should be paid; this decision being made without any direct appeal from her.

The defendant company then moved to strike the amended reply from the files, for the reason that such amended reply was not in such form as required by law. This motion was sustained, and the reply was stricken from the files over the objection of counsel for plaintiff.

We do not understand why this reply should have been stricken from the files. If it contained evidentiary matter, it might have been stricken on motion to strike the evidentiary matter from the reply. This was not done. The motion was to strike the reply from the files, and this motion was granted.

We are of opinion that the reply should not have been stricken, as it controverted all the facts alleged in the answer, and raised the question as to whether or not the plaintiff received notice of the rejection of her claim from the superintendent, and whether or not the conduct of the superintendent and the committees could be construed as a waiver of the rule requiring an appeal within 30 days from the decision of the superintendent.

The plaintiff, however, reserving exceptions, filed another amended reply, leaving out some of the facts which she may have considered evidentiary, and a motion to strike the second amended reply from the files was filed. The court granted this motion, to which the plaintiff excepted. We are of opinion that this was error.

The plaintiff thereupon tendered a third amended reply, putting in issue the question of waiver, and whether or not any final decision had been made by the superintendent, whether any notice of the decision had been given to the plaintiff, and whether the final action of the advisory committee constituted a waiver of the 30-day appeal, and whether an appeal under the circumstances was necessary. It also put in issue, under the general denial, the rules of the company requiring the 30-day appeal, the action of the superintendent, the action of the advisory committee, and the question as to whether or not the deceased was killed in the course of his employment or in protecting the defendant’s property.

The court refused leave to plaintiff to file this reply, raising these issues. Whereupon the defendant moved for judgment on the pleadings, which motion the court granted, and the plaintiff’s case was dismissed. Again, we are of opinion that the court erred in refusing leave to file the reply and in entering the judgment on the pleadings as they then stood.

There was a reply on file, which had not been stricken from the record, which put in issue the facts in the case under the general denial.

The defendant’s answer setting up the failure to appeal to the advisory committee within the 30 days was denied by this general denial. Further, the reply put in direct issue the question as to whether or not the 30-day requirement for filing the appeal was waived by the defendant company by its course of conduct.

Our conclusion is that the court erred in refusing leave to file the third amended reply; erred in striking the second amended reply from the files; and erred in granting judgment on the pleadings.

The judgment will be reversed, and the cause will be remanded to -tbe court of common pleas, with instructions to reinstate tbe case, permit tbe filing of tbe third amended reply, and for further proceedings according to law.

Judgment reversed and cause remanded.

Cushing and Ross, JJ., concur.  