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Wallin v. Fuller

United States Court of Appeals for the Fifth Circuit
476 F.2d 1204 (1973)


Facts

Carl Wallin died when his car collided with a car driven by Allen Fuller (defendant) on a two-lane highway. Wallin was insured by Nationwide Mutual Insurance Company (Nationwide) (defendant). Marsha Lee Wallin (plaintiff), Carl Wallin’s widow, filed suit against Nationwide seeking a declaratory judgment that Fuller’s negligence caused Mr. Wallin’s death. The defendants denied that Fuller was negligent and claimed that Mr. Wallin had been contributorily negligent. At issue was whether the accident occurred in Mr. Wallin’s right or left lane. Fuller had a passenger in his car at the time of the accident, George Mayes. During Mayes’s deposition, he testified that Mr. Wallin had pulled out to pass a car and was in his left lane (Fuller’s right lane). Mayes further testified that Fuller did not slow down even when he saw Mr. Wallin in his lane, Mayes had to shout at Fuller to slam on his brakes, and at the last second Fuller did brake but skidded into Mr. Wallin. During the trial, Mayes testified and Fuller corroborated Mayes’s testimony, admitting that the accident might not have happened if he had slowed down even a little. No objections were made. Mrs. Wallin objected to the jury instructions because they did not include subsequent negligence or wanton conduct and moved to amend her pleadings to include those issues. The court overruled Mrs. Wallin’s objection and denied her motion because the issues were not in the pretrial order. The jury found in favor of the defendants. Mrs. Wallin appealed.

Rule of Law

Issue

Holding and Reasoning (Wisdom, J.)

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