## Facts

- Carl R. Wallin died after his Volkswagen collided with a Pontiac driven by Allen Ernest Fuller on a two-lane highway in Alabama.
- Fuller was uninsured; Wallin’s policy with Nationwide Mutual Insurance Co. included uninsured motorist coverage.
- Wallin’s administratrix sued in federal diversity court, alleging Fuller’s negligence triggered uninsured motorist coverage.
- A pretrial order framed the case as simple negligence (Fuller allegedly crossed the center line) and contributory negligence (Wallin allegedly attempted to pass without sufficient room).
- At trial, evidence was introduced (without defense objection) that also supported theories of subsequent negligence (last clear chance) and wanton conduct.
- The defense did not move to strike such evidence, seek a continuance, or claim surprise.

## Issues

1. Whether the district court erred by refusing to instruct on subsequent negligence and wantonness when evidence on those theories was admitted without objection, even though the pretrial order did not list them.
2. Whether, under Federal Rules of Civil Procedure 15(b) and 16, the pleadings and pretrial order should be treated as amended to conform to issues tried by implied consent.

## Decision

- The Fifth Circuit reversed and remanded for a new trial.
- The court held the parties tried subsequent negligence and wantonness by implied consent because related evidence was admitted without objection and the defendant claimed no surprise or prejudice.
- The district court’s refusal to charge the jury on those theories was reversible error.

## Legal Principles

- Under Fed. R. Civ. P. 15(b), issues not raised by the pleadings that are tried by express or implied consent must be treated as if raised in the pleadings, and the pleadings are deemed amended to conform to the evidence.
- A pretrial order under Fed. R. Civ. P. 16 controls the litigation’s course unless modified, but it must be applied consistently with Rule 15(b) where trial evidence expands the issues by consent.
- Implied consent is supported when evidence on an unpleaded theory is admitted without objection and the opposing party neither seeks to exclude it nor requests a continuance for unfair surprise.
- When an issue has been tried by consent, the jury should be instructed on that theory; limiting instructions to the pretrial order can be prejudicial and reversible.
- Under Alabama tort law, contributory negligence may bar recovery for simple negligence but does not bar recovery for subsequent negligence or wanton conduct, making omission of those instructions potentially outcome-determinative.

## Conclusion

Because evidence supporting subsequent negligence and wanton conduct was admitted without objection and without unfair surprise, those issues were tried by implied consent under Rule 15(b), requiring corresponding jury instructions; the refusal to instruct warranted reversal and a new trial.


Wallin v. Fuller, 476 F.2d 1204 (5th Cir. 1973)