Citizens' Gas & Fuel Co. v. Warden

• Decision Date: 23 April 1926
• Docket Number: No. 11868.,11868.
• Citation: 90 Ind.App. 182,151 N.E. 433
• Court: Indiana Appellate Court
• Parties: CITIZENS' GAS & FUEL CO. v. WARDEN.

90 Ind.App. 182

151 N.E. 433

CITIZENS' GAS & FUEL CO.

v.WARDEN.

No. 11868.

Appellate Court of Indiana, in Banc.

April 23, 1926.

Appeal from Parke Circuit Court; Roy Baker, Judge.

On petition for rehearing. Petition denied.

For original opinion, see 149 N. E. 565.

McMAHAN, J.

[1] 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, 90 N. E. 766, 173 Ind. 429,Belt, etc., R. Co. v. Mann, 7 N. E. 893, 107 Ind. 89, and Ryan v. Hurley, 21 N. E. 463, 119 Ind. 115, 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., 99 N. E. 429, 100 N. E. 307, 54 Ind. App. 28, 36:

“We were not unaware of these decisions when the original opinion in this case was rendered, but the Supreme Court seems to have departed from the rule announced in the cases cited. That court in a recent decision holds that the omission of a material averment from the complaint may be cured or rendered harmless by the evidence. Crawfordsville Trust Co. v. Ramsey (1912) 96 N. E. 177, 178 Ind. 258. *** We recognize the force and effect of these decisions, but where the decisions of the Supreme Court are not in harmony, we feel at liberty to follow that line which is most recent, and which, in our opinion, is most in accord with the spirit of our statutory enactments on the subject.”

And the court, after quoting from sections 345, 398, 658, R. S. 1881 (sections 368, 426, 725, Burns' 1926), said:

“It is true that in passing upon the sufficiency of a pleading to withstand a demurrer, the court will look solely to the facts averred in such pleading, and that it must stand or fall by its own averments, and that the evidence, findings, or other parts of the record cannot be considered in determining whether the pleading is sufficient. *** The statutes quoted, however, seem to contemplate that this court, before reversing a case on account of an erroneous ruling on demurrer, shall do something more than merely decide that such ruling was erroneous. After we have decided that question, we are required by the statute to consider and determine whether such ruling, in view of the whole record, has prejudiced the adverse party in his substantial rights. In deciding this question we may look to the evidence, the findings, the answers to interrogatories, and to any other part of the record which can throw any light upon the subject; and, if it affirmatively appears from the whole record, that the erroneous ruling on demurrer did not prejudice the adverse party and that the case has been fairly tried and determined on its merits, it is our duty to affirm regardless of such error.”

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 Ætna Life Ins. Co. v. Fitzgerald, 75 N. E. 262, 165 Ind. 317, 1 L. R. A. (N. S.) 422, 112 Am. St. Rep. 232, 6 Ann. Cas. 551;Noble v. Davison, 96 N. E. 325, 177 Ind. 19; Crawfordsville Trust Co. v. Ramsey, supra; Volker v. State ex rel., 97 N. E. 422, 177 Ind. 159;Domestic Block Coal Co. v. De Armey, 100 N. E. 675, 102 N. E. 99, 179 Ind. 592;Pittsburgh, etc., R. Co. v. Home Ins. Co., 108 N. E. 525,183 Ind. 355, Ann. Cas. 1918A, 828; Harmon v. Speer, 144 N. E. 241, 246, 195 Ind. 199;A. D. Baker Co. v. Smedley, 100 N. E. 307, 55 Ind. App. 79;Indiana Life, etc., Co. v. Patterson, 103 N. E. 817, 55 Ind. App. 291;Euler v. Euler, 102 N. E. 856, 55 Ind. App. 547;Scheigert v. Boyer, 122 N. E. 670, 69 Ind. App. 674;Federal Life Ins. Co. v. Barnett, Adm'x, 125 N. E. 522, 71 Ind. App. 613;Finch v. McClellan, 130 N. E. 13, 131 N. E. 236, 77 Ind. App. 533;Webster v. Adams, 137 N. E. 883, 79 Ind. App. 261;Pittsburg, etc., Co. v. Rushton (Ind. App.) 148 N. E. 337, 149 N. E. 652. Among the earlier cases where the court looked to the evidence see Springer v. Myers, 29 Ind. 464;Hedge v. Sims, 29 Ind. 574;State ex rel. Davis v. Board of Commissioners of Newton County, 74 N. E. 1091, 165 Ind. 262, 6 Ann. Cas. 468.

[2] 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, Adm'r, v. Equitable, etc., Soc., 100 Ind. 127, 136, 50 Am. Rep. 779.

[3] 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...