Where the evidence which supports an unpleaded issue also tends to support an issue properly raised by the pleadings, no objection to such evidence is necessary and the failure to object does not amount to implied consent to try the unpleaded issue.
Appellant purchaser sued appellees, seller and manufacturer, alleging breach of warranties. Appellant appealed the trial court’s order granting directed verdicts to appellees and denying appellant's motion to amend his complaint to allege negligence. The appellate court affirmed the denial of appellant’s motions to amend and the directed verdicts as to breach of express warranty and for appellee manufacturer as to breach of implied warranty of merchantability. However, the directed verdict for appellee seller as to breach of implied warranty of fitness for particular purpose was reversed.
Was there an abuse of discretion in the trial court’s denial of appellant purchaser’s pretrial motion to amend his complaint to allege negligence, made over a year and a half after the original complaint was filed?
The evidence cited by appellant in support of the issue of negligence also supported the allegations of breach of warranty, which were raised by the pleadings. Therefore, appellees' failure to object to such evidence did not amount to implied consent to try the issue of negligence. The trial court did not abuse its discretion in denying appellant's motion to amend his complaint to allege negligence.