dissenting:
Plaintiffs, Kevin and Debra Winter, filed a complaint on July 24, 1981, against defendants, Henry Service Company (Henry) and Mayrath Industries, Inc. (Mayrath), seeking damages for injuries Kevin suffered when his hand became caught in a bottom drive auger. The subject auger was manufactured by Mayrath and distributed by Henry. On June 23, 1989, following nearly eight years of discovery and a mistrial, defendants filed motions for leave to file a third-party complaint for contribution against Wilhelm Winter, Kevin’s father. The trial court denied defendants’ motions and the matter proceeded to trial. A jury subsequently found Henry 25% liable for Kevin’s injuries. Henry appeals the trial court’s denial of its motion to join Wilhelm Winter as a third-party defendant. The majority opinion reverses the trial court’s decision denying defendants’ motion. I dissent.
Section 2—406 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—406(b)) provides in pertinent part:
“(b) Within the time for filing his or her answer or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiff’s claim against him or her.”
Section 2—616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—616(a)) further provides, in part, that “[a]t any time before final judgment amendments may be allowed on just and reasonable terms.” Although Illinois authority encourages liberal construction of the statute (Bloom v. Landy (1979), 72 Ill. App. 3d 383), parties have no absolute right to amend their pleadings. The decision to allow amendments is within the sound discretion of the trial court considering the facts and circumstances of a case and the impact on the parties involved, and such a decision will not be disturbed absent a clear abuse of that discretion. Ennis v. Illinois State Bank (1969), 111 Ill. App. 2d 71.
Henry contends that its motion was made in a timely fashion in response to the surprise testimony of Rodney Winter, Kevin’s brother. At the first trial in April 1989, Rodney testified that he advised his father, Wilhelm, that he should procure a screen guard for the auger intake screw. This testimony apparently contradicted the testimony of Kevin and Wilhelm, whose depositions had previously been taken, by indicating that Wilhelm knew or should have known a guard was available prior to Kevin’s accident and that he failed to obtain same. Rodney’s deposition was taken on June 7, 1989, after which time Henry requested leave to join Wilhelm. Henry maintains that it could not have anticipated Rodney’s contradictory testimony, especially considering the close family relationship among Kevin, Wilhelm and Rodney, and that it moved to join Wilhelm in a timely manner upon learning of Rodney’s story. The majority agrees, reasoning that defendants acted promptly in filing their motions after “discovering” the information revealed in Rodney’s deposition testimony, and determining that the trial court abused its discretion in denying Henry’s motion.
I do not agree that Henry acted in timely fashion. Depositions of Kevin and Wilhelm were taken in 1986, at which time both men testified that Rodney was present for conversations concerning the auger guard with Arlo Morley, a Henry Service Company representative. More than three years elapsed between the time Rodney was identified as a participant in discussions about obtaining a guard and the first trial. The essential facts regarding Rodney’s involvement were available to Henry no later than 1986, yet no effort was made to depose him prior to April 18, 1989. Such inattentiveness on Henry’s part cannot be attributed to “surprise” testimony on the date of trial. The trial court did not abuse its discretion in refusing to allow Henry to file its third-party pleading when Henry failed to adequately demonstrate an inability to obtain Rodney’s testimony and amend its pleadings at an earlier date. Accordingly, I dissent.