Rehearing and Rehearing En Banc Denied September 25, 1972.
GEWIN, Circuit Judge:
This appeal presents the Case of the Forgotten Issue and raises the interesting problem of what happens in a diversity suit where the litigants raise an issue in their pleadings and then forget about the question until after the case has gone to the jury. The district court treated the absence of proof on the issue to be a failure of proof of a material element of the cross-claim...
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