This section contains the nature of the case and procedural background.

Carl Wallin was killed when his car collided with Allen Fuller's(D) car. Carl had an insurance policy with Nationwide Mutual, which contained a standard uninsured motorist clause. D was uninsured. Marsha Lee (P), Wallin's widow, sued Nationwide seeking a declaratory judgment against Nationwide under the policy alleging that D was negligent and had caused the accident. A pretrial hearing was held, and an order specifying the issues was entered. Trial commenced, and the issues were joined; that being the negligence of D and the contributory negligence of P. During trial, it was revealed that even if P was contributorily negligent, D might have been guilty of subsequent negligence or wanton conduct. There was no such stipulation to this issue in the pretrial order, but under Alabama law, a showing of subsequent negligence or wanton conduct would defeat the defense of contributory negligence. No objection was made to the admission of evidence that D did not slow down when he was aware that P was trying to pass. This evidence was known by the defense from a pretrial hearing in which P's attorney was present. The fact that the issue of subsequent negligence was not addressed in the pretrial order was not brought to the trial court's attention until after both sides rested. Leave to amend was denied and the case was submitted to the jury without instructions as to the legal effect of subsequent negligence. The jury found for D and P appealed.

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