ON PETITION FOR REHEARING. Appellant, in support of its petition for a rehearing, criticises our statement that the traction railroad is 14 feet south of the cement walk running along the south side of the traction station, when one of its witnesses said the distance was 15.3 feet, and *Page 243 also the statement that, at the time of the accident, a coal car was standing on the switch a short distance east of the crossing. Two witnesses testified there was a box car standing at this point. Two of appellant's witnesses testified that no box car was on this switch the day of the accident nor for several days prior thereto. There is evidence, however, that there was a car just east of the crossing at the time of the accident. The question as to whether it was a box car or a coal car is of no importance except as it related to the situation at the crossing, as bearing on the question of appellant's duty to give warning of the approach of the train, and except as showing that the view of a traveler on the highway was obstructed thereby.
The main contention of appellant in support of its petition for a rehearing relates to our statement that: "When a cause has been appealed to this court after trial, and where the evidence is in the record, we are required to do more than decide that the action of the court in overruling a demurrer was error. We must then determine whether, in view of the whole record, the ruling, if erroneous, was prejudicial to the adverse party. In deciding this question, we may look to the evidence and to other parts of the record, and, if it affirmatively appears from the whole record that the erroneous ruling did not prejudice the adverse party, and that the case was fairly tried and determined on its merits, it is our duty to affirm, regardless of such error."
Appellant insists: (1) That this statement is radically wrong, and that it is "grounded upon the false premise that this court has the right, and that it is our duty, under the statute, to examine and weigh the evidence to determine whether error in overruling a demurrer to a bad complaint is harmless to appellant, and if so to adjudge the error not a reversible one"; and (2) that *Page 244 this court "cannot examine the evidence to determine whether or not the ruling on the demurrer was harmless or harmful." In support of these contentions, appellant refers to that part of § 350 Burns 1914, which provides that "The judgment upon overruling a demurrer shall be that the party shall plead over; and the answer or reply shall not be deemed to overrule the objection taken by demurrer," and says this includes the evidence given under the answer or reply.
It must be kept in mind that we are now dealing with a case where there was no failure to introduce evidence to prove every fact essential to sustain a verdict for appellee. We called attention in the principal opinion, and we again call attention, to the fact that appellant and appellee, each without any objection from the other, introduced evidence covering all of the alleged defects and omissions in the complaint. We do this for the reason that appellant, quoting from Noble v. Davidson (1911), 177 Ind. 19, 96 N.E. 325, places emphasis upon the fact that the court, in applying § 700 Burns 1914, and in referring to the alleged defect in the complaint, which was that there was no allegation in the complaint that Noble was president of a certain company when the contract in question was executed, said: "It was proved at the trial, without any objection by defendants, that Noble was the president of the corporation when the contract was executed, and, indeed, that he executed the contract for the corporation." Appellant, in making this quotation has italicised the words "without any objection" so as to make it appear that the court had also italicised those words and placed emphasis upon the fact that the evidence was introduced without objection. It was not necessary for the court in that case, nor is it necessary for us in this case, to decide what would have been the effect if this evidence had been introduced over an objection. In so far as the instant case *Page 245 is concerned, the record on this question is the same as was the record in the Noble case. The evidence covering the alleged defect was introduced without any objection from appellant. There, as here, the complaint had been tested by demurrer, and what the court said, was said in discussing the effect of overruling a demurrer to a complaint after a trial and on appeal where the evidence was in the record.
There are three sections of the Code bearing upon this question. Section 350 Burns 1914 (§ 348 R.S. 1881), provides that: "The judgment upon overruling a demurrer shall be that the party shall plead over; and the answer or reply shall not be deemed to overrule the objection taken by demurrer. But no objection taken by demurrer and overruled shall be sufficient to reverse the judgment, if it appear from the whole record that the merits of the cause have been fairly determined." (Our italics.)
Section 407 Burns 1914 (§ 398 R.S. 1881), is as follows: "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."
Section 700 Burns 1914 (§ 658 R.S. 1881), provides that: "No judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, 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, but such defects shall be deemed to be amended in the Supreme Court; 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." *Page 246
As was said in Vulcan Iron, etc., Co. v. Electro, etc., Min.Co. (1912), 54 Ind. App. 28, 99 N.E. 429, 100 N.E. 307: "When a pleading is held sufficient by the court as against a demurrer, the party demurring may stand upon his demurrer and appeal, or he may plead to the merits. If he takes the former course, the only question presented on appeal is the sufficiency of the pleading to which the demurrer was directed, and, in case such pleading is held insufficient on appeal, the judgment will be reversed. If he takes the second course, pleads to the merits and proceeds to final judgment, the objection taken by demurrer may or may not be available to reverse on appeal. If the record does not show affirmatively that such ruling was harmless to the adverse party, the case should be reversed; but, if the whole record shows that the case has been fairly determined on its merits, and that the erroneous ruling on demurrer was not prejudicial, the statutes quoted require that the judgment should be affirmed, regardless of such error." (Our italics.) In that case, the trial court erred in overruling a demurrer to the complaint and also in giving instructions, but, on appeal, this court, after having examined the evidence and the answers of the jury to interrogatories, held the errors were not prejudicial and affirmed the judgment.
While a number of decisions may be found holding that an error of the trial court in overruling a demurrer to a defective complaint cannot be cured by subsequent proceedings (Pennsylvania Co. v. Poor [1885], 103 Ind. 553, 3 N.E. 253;Pennsylvania Co. v. Marion [1885], 104 Ind. 239, 3 N.E. 874;Belt R., etc., Co. v. Mann [1886], 107 Ind. 89, 7 N.E. 893;Ryan v. Hurley [1889], 119 Ind. 115, 21 N.E. 463; Chapman v. Jones [1897], 149 Ind. 434, 47 N.E. 1065, 49 N.E. 347;Friedersdorf v. Lacy [1910], 173 Ind. 429, 90 N.E. 766), our courts have departed from the rule announced in these cases. *Page 247 See Noble v. Davidson, supra; Crawfordsville Trust Co. v.Ramsey (1912), 178 Ind. 258, 98 N.E. 177; Prudential Ins. Co. v. Ritchey (1918), 188 Ind. 157, 119 N.E. 369, 484; Jackson,Rec., v. Atwood, Admx. (1923), 194 Ind. 56, 140 N.E. 549. The rule, stated in the more recent decisions of the Supreme Court, has been followed by this court in Vulcan Iron, etc., Co. v.Electro, etc., Min. Co., supra; Euler v. Euler (1913),55 Ind. App. 547, 557, 558, 102 N.E. 856; Chicago, etc., R. Co. v.Gorman (1914), 58 Ind. App. 381, 106 N.E. 897; Federal LifeIns. Co. v. Barnett, Admx. (1919), 71 Ind. App. 613, 125 N.E. 522; Kec v. Kec (1923), 79 Ind. App. 186, 137 N.E. 632;Finch, Admr., v. McClellan (1921), 77 Ind. App. 533, 130 N.E. 13, 131 N.E. 236.
And where the record shows that a cause was fairly tried and determined, errors in giving or refusing to give instructions are harmless. City of Decatur v. Eady (1917), 186 Ind. 13. 205, 115 N.E. 577, L.R.A. 1917E 242; Indianapolis St. R. Co. v. Schomberg (1905), 164 Ind. 111, 72 N.E. 1041;Norris v. Casel (1883), 90 Ind. 143; Toler v. Keiher (1882), 81 Ind. 383; Moriarity, Rec., v. Hickman (1920),73 Ind. App. 329, 127 N.E. 459; Mishler v. Chicago, etc., R. Co. (1919), 188 Ind. 189, 122 N.E. 657; Walda v. Fort Wayne, etc.,Traction Co. (1913), 54 Ind. App. 401, 102 N.E. 978; St. Clair v. Princeton Coal, etc., Co. (1912), 50 Ind. App. 269, 98 N.E. 197; Burton v. Burton (1922), 77 Ind. App. 436, 133 N.E. 612. Many other cases decided by this and the Supreme Court might be cited to support the rule.
Appellant insists that a bill of exceptions containing the evidence is not a part of the "record proper," and that we cannot look to the evidence in the bill of exceptions to 14. determine that the overruling of the demurrer was harmless. We cannot agree with this contention. We think it clear that, when the evidence *Page 248 has been brought into the record by a bill of exceptions, it becomes a part of the record on appeal, and that, in a case like the instant one, we have the right to look to the evidence to ascertain whether the merits of the cause have been fairly determined. If the evidence is not in the record, the fact that the party appealing has filed an answer or a reply, shall not, as stated in § 350, supra, "be deemed to overrule the objections taken by demurrer." But, if it appears from the whole record, which includes the bill of exceptions containing the evidence, that the merits of the cause have been fairly determined, the objection taken by demurrer, and overruled, is not sufficient ground for a reversal. Any other holding would be a reproach on the law and equivalent to saying that even though the record shows a cause was fairly tried and a correct result reached, the judgment must be reversed because of the action of the court in overruling a demurrer or in giving an instruction, when the record conclusively shows such error was harmless. We cannot give our sanction to any such holding. It was held as early as Amick v. O'Hara (1842), 6 Blackf. (Ind.) 258, that the court could look to the evidence, when in the record, to determine whether the giving of an erroneous instruction was reversible error. We are satisfied that the more recent decisions of the Supreme Court on this subject are right in principle and should be followed.
Rehearing denied. *Page 249