dissenting:
Although Gulf states that the erroneous ruling by the trial court allowing the third party defendant to deny the request for admission at trial was error, Gulf does not state how it was damaged therein. All it says is that “this erroneous ruling by the trial judge greatly prejudiced Gulf because it was suddenly deprived of crucial and important admissions of fact for which it had inadequate time to obtain substitute proof.” In its brief Gulf did not delineate what specifically Curry and Marchman were permitted to deny.
First, counsel for third party defendant asked to deny that there was legal consideration for the contract. I think he could have argued this anyway, even though the contract was taken as admitted. Second, he denied that the work being done by Curry fell within the purview of the contract. This, too, would not have been admitted even if he had admitted the request in question, because the contract described the work to be performed by third party defendant as well-servicing and the issue of whether or not the third party defendant was engaged in well-servicing was hotly disputed at the trial.
However, assuming that the admissions did cover these denials, I still believe the trial court was well within its discretion when it allowed the third party defendant to deny the admissions at the trial. These denials were made prior to the time that third party plaintiff put on any evidence. Third party plaintiff could have asked for a continuance, but he did not do so. This situation is analogous to allowing a party to amend his pleadings during trial. In such circumstances, it is generally held that the trial court may, in its discretion, when it would not involve unfair, surprise and prejudice to the opposing party. The defendant could have asked for a continuance, could have asked for the cases to be severed, but did not do so.
With reference to the error claimed in the form of verdict submitted to the jury by the trial judge, third party plaintiff does not in this court arid did not in the trial court show how it was harmed by the forms of verdict given. In fact, there was not even a specific objection made to them. In addition, the holding of the majority on this point is contrary to Section 68(3) of the Civil Practice Act. (See the Joint Committee Comments to this Section.)