Citizens Gas and Fuel Company v. Warden
Decision Date | 23 April 1926 |
Docket Number | 11,868 |
Citation | 151 N.E. 433,90 Ind.App. 182 |
Parties | CITIZENS GAS AND FUEL COMPANY v. WARDEN |
Court | Indiana Appellate Court |
90 Ind.App. 182. At 188.
Original Opinion of November 18, 1925, Reported at: 90 Ind.App. 182.
Petition for rehearing denied.
OPINIONON PETITION FOR REHEARING.
Appellant in support of its petition for a rehearing, insists we erred in holding it was not reversible error to overrule the demurrer to the complaint. In support of this contention appellant cites Friedersdorf v. Lacy (1910), 173 Ind. 429, 90 N.E. 766; Belt, etc., Co. v. Mann (1886), 107 Ind. 89, 7 N.E. 893, and Ryan v. Hurley (1889), 119 Ind. 115, 21 N.E. 463, in each of which cases, the Supreme Court held an error of this kind cannot be cured by subsequent proceedings in the case. But, as was said by this court in Vulcan Iron, etc., Co. v. Electro, etc., Min. Co. (1912), 54 Ind.App. 28, 36, 99 N.E. 429, 100 N.E. 307: And the court, after quoting from §§ 345, 398, 658 R. S. 1881, §§ 368, 426, 725 Burns 1926, said:
On petition to transfer, the appellant in that case insisted that the rule so announced by this court was in conflict with the decisions of the Supreme Court in the three cases cited by appellant in the instant case in support of its petition for a rehearing. The petition to transfer was denied. Without expressing an opinion as to whether the refusal to transfer makes that case a ruling precedent, we are of the opinion that, having met with the approval of the Supreme Court, it is entitled to respectful consideration, and we are satisfied that the rule there announced by this court is correct and should be applied in the instant case. To the same effect, see Aetna Life Ins. Co. v. Fitzgerald (1905), 165 Ind. 317, 75 N.E. 262, 1 L. R. A. (N. S.) 422, 112 Am. St. 232, 6 Ann. Cas. 551; Noble v. Davison (1911), 177 Ind. 19, 96 N.E. 325; Crawfordsville Trust Co. v. Ramsey, supra; Volker v. State, ex rel. (1912), 177 Ind. 159, 97 N.E. 422; Domestic Block Coal Co. v. De Armey (1913), 179 Ind. 592, 100 N.E. 675, 102 N.E. 99, Pittsburgh, etc., R. Co. v. Home Ins. Co. (1915), 183 Ind. 355, 108 N.E. 525, Ann. Cas. 1918A 828; Harmon, Rec., v. Speer, Admx. (1924), 195 Ind. 199, 144 N.E. 241, 246; A. D. Baker Co. v. Smedley (1912), 55 Ind.App. 79, 100 N.E. 307; Indiana Life, etc., Co. v. Patterson (1914), 55 Ind.App. 291, 103 N.E. 817; Euler v. Euler, Admx. (1913), 55 Ind.App. 547, 102 N.E. 856; Scheigert v. Boyer (1919), 69 Ind.App. 674, 122 N.E. 670; Federal Life Ins. Co. v. Barnett, Admx. (1919), 71 Ind.App. 613, 125 N.E. 522; Finch, Admr., v. McClellan (1921), 77 Ind.App. 533, 130 N.E. 13, 131 N.E. 236; Webster v. Adams (1923), 79 Ind.App. 261, 137 N.E. 883; Pittsburgh, etc., R. Co. v. Rushton (1925), post 227, 148 N.E. 337, 149 N.E. 652. Among the earlier cases where the court looked to the evidence, see Springer v. Myers (1868), 29 Ind. 464; Hedge v. Sims (1868), 29 Ind. 574; State, ex rel., v. Board, etc. (1905), 165 Ind. 262, 74 N.E. 1091, 6 Ann. Cas. 468.
Appellant makes no claim that it was harmed in the least by the overruling of its demurrer to the complaint. Nor does it deny that, without objection, evidence was introduced covering all the alleged defects in the complaint. The evidence was introduced, the jury instructed, a verdict returned, and judgment rendered just as it would have been if the complaint had not been defective. We are not called upon to weigh the evidence to determine that a fair trial was had upon the merits. We can, however, look to the record to see if sufficient evidence was introduced to sustain a finding of all facts necessary to sustain the verdict. McLean, Admr., v. Equitable, etc., Soc. (1884), 100 Ind. 127, 136, 50 Am. Rep. 779.
The importance of the statutory provisions forbidding a reversal because of intervening errors where there has been a fair trial on the merits deserves a careful consideration, and calls for their steady application to every case which can reasonably be brought within their scope. It was never intended that a case in which it is necessary to use a legal microscope to discover an error should be reversed and sent back to the trial court for a new trial when the record shows the error was a harmless one. Such a course is opposed to common...
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