The opinion
Dissenting Opinion.
Spencer, C. J.
— I am unable to concur in the conclusion of my associates that the cases of Dunham v. Jones (1915), 184 Ind. 46 , 110 N. E. 203 , and Cincinnati, etc., R. Co. v. Gross (1917), 186 Ind. 471 , 114 N. E. 962 , should be overruled in so far as they hold that an appellant who fails to demur to a complaint, and thus waives objection to the sufficiency of the facts stated therein, cannot thereafter predicate error on the giving of an instruction which authorizes a verdict on proof of the material allegations of the pleading. I agree with the premise stated in the majority opinion that the act of 1911 (Acts 1911 p. 415, §2, §344 Burns 1914), relative to the pointing out of defects by demurrer, was *166 intended “to reinforce other statutes providing that, after verdict, pleadings should be deemed amended as to such defects so as to conform to the evidence,” and I concur in the further statement that “it was not the purpose to dispense with the proof of facts essential under the law to constitute a cause of action or a cause of defense;” If the evidence is insufficient to establish any of such facts, the question may readily be raised in a motion for a new trial, but if, on the other hand, proper proof is made, the case falls within the provisions of §700 Burns 1914, §658 R. S. 1881, and the rule announced in Union Frat. League v. Sweeney (1915), 184 Ind. 878 , 382, 111 N. E. 305 , and similar decisions. The holding in the present case tends materially to weaken, if it does not destroy, the force of the act of 1911 by permitting an indirect attack on a pleading where the right to a direct attack has been waived and the waiving party has elected to sit by and take his chances on a favorable verdict, and it serves also to lessen the beneficent influence of §700, supra, and the cases decided thereunder. This court knows judicially that the exact question now under consideration was squarely presented in the Dunham and Gross cases, and the rule therein announced served in no way to jeopardize the substantial rights of any litigant. The pres-sent decision, in my opinion, is out of harmony with the act of 1911 and other statutes which have been designed to prevent the reversal of the judgment of a trial court except for substantial error. I concede that instructions such as the one given in this case, and in the Dun-ham and Gross cases as well, are technically erroneous, but the error, in each instance, relates back to an imperfection in a pleading which has been waived through a failure to demur thereto. That waiver should continue to operate through all subsequent attacks on such, pleading, whether direct or indirect, but need not affect *167 the right to require proof of all facts necessary under the law to establish a cause of action or a valid defense. Any such omission would render a judgment contrary to law and necessitate the granting of a new trial.
Note. — Reported in 119 N. E. 484 . Complaint, sufficiency, raising for first time on appeal, 3 Ann. Cas. 545, 2 Cyc 691.