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WALLIN v. FULLER

No. 72-1132.

476 F.2d 1204 (1973)

Marsha Lee WALLIN, as Administratrix of the Estate of Carl R. Wallin, Deceased, Plaintiff-Appellant, v. Allen Ernest FULLER and Nationwide Mutual Insurance Company, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

April 20, 1973.

Attorney(s) appearing for the Case

Jack Crenshaw, Maultsby Waller, Montgomery, Ala., for plaintiff-appellant.

Richard Ball, Montgomery, Ala., for defendants-appellees.

Before RIVES, WISDOM and RONEY, Circuit Judges.

WISDOM, Circuit Judge:

This case presents the question whether a trial court should instruct a jury on a theory of liability not mentioned in the pretrial order but supported by evidence introduced at the trial without objection. The district court declined so to instruct the jury. We reverse and remand for a new trial.

Carl Wallin was killed on August 16, 1970, when his Volkswagen, which he was driving, collided with a Pontiac driven by Allen Fuller on a...

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