Citizens Gas & Fuel Co. v. Warden , 90 Ind. App. 182 ( 1925 )

ON 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: "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), 178 Ind. 258, 98 N.E. 177. . . . 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 §§ 345, 398, 658 R.S. 1881, §§ 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 can not 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 5. 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 AetnaLife 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 TrustCo. 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, seeSpringer v. Myers (1868), 29 Ind. 464; Hedges 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 6. 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 sense and every principle of natural justice. The plain intention of the law is, and the welfare of society demands, that litigation be reduced to the minimum; that the time and labor bestowed in the trial of a cause shall not be lost when no prejudicial error appears in the record; and that a successful litigant shall not be put to the labor and expense of again establishing his right, when there has been a fair trial upon the merits. In short, it was and is the intention of the law that our appellate tribunals shall not reverse for harmless errors. To reverse and send a cause back for a new trial is often a practical denial of justice. The most common illustrations of the hardships resulting from reversing a cause and sending it back for a new trial are actions for personal injuries or death. These cases are, when for personal injuries, generally prosecuted by employees, and, when for death, by their representatives, whose financial means are as a rule limited. Witnesses become scattered, and death may intervene with a resulting handicap to the plaintiff. Witnesses must frequently be brought from a distance, and the expense while waiting for the cause to be reached and during trial must be paid. While it is our duty to reverse when prejudicial error has been shown, it is also our duty, upon error being pointed out, to look to the record to ascertain whether there has been a fair trial of the cause on the merits, and, if we find the errors were harmless, our duty is plainly prescribed by the statute. Section 368 Burns 1926 (§ 345 R.S. 1881) is, in part, as follows: "But no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appears from the whole record that the merits of the cause have been fairly determined." While 7. § 426 Burns 1926 (§ 398 R.S. 1881) says: "The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect." And again, the statutory mandate is that: "No judgment shall be stayed or reversed, . . . for any defect in form, variance or imperfection contained in the record, pleadings, process, entries, returns, or other proceedings therein, which, by law, might be amended by the court below, . . . nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below." (Our italics.) § 725 Burns 1926, § 658 R.S. 1881. Such is the law as declared by that department of government which created this court, and whose mandate we are bound to obey in proper cases.

Appellant originally contended that the evidence was not sufficient to sustain a finding that it was a public service corporation, and that it was under obligation to furnish appellee with a supply of gas. This contention seems to have been abandoned, as appellant, in its brief on rehearing, admits that it is a "public utility corporation" owing duties to the public and gives that as one of the reasons why it deems it to be its duty to call our attention to certain questions that have arisen on this appeal.

Petition for rehearing denied.