dissenting.
I dissent.
The so-called “Loan Receipt Agreement” should have been admitted into evidence for the jury’s consideration. To exclude it denied Ohio Valley Gas, Inc. a fair trial. The exclusion of the agreement enabled the City of Sullivan and the plaintiff to become strange bedfellows, intent upon fixing blame upon the gas company not only at trial, but also upon appeal where the City of Sullivan presents its brief in support of the judgment against it and the gas company for $700,000.00. Having limited its exposure by the agreement, the City is comfortable in supporting a judgment which, under the agreement, will allow it to recoup its payment to the plaintiff. Any settlement of claims of the parties to litigation which changes adversaries to allies should be made known to the fact finder. This allows the fact finder to better evaluate the credibility of the witnesses.
Compounding this error, the trial judge erroneously refused to admit prior inconsistent statements of city employees, admitted irrelevant photographs of unguarded pipelines other than the one at issue, and permitted the use of federal and state regulations that were clearly inapplicable to the facts. The gas company has preserved these errors and has ably presented its position, which is correct factually and legally, on appeal.
Likewise, it was unfair for the trial judge to strike the cross-claim of the gas company against the City of Sullivan. Cross-claims are permissive pleadings, not required pleadings. Leave of court is not required to file a cross-claim.
For these reasons, I would reverse.