The Pre-trial Order entered makes no reference to any claim for punitive damages and, in the opinion of the Court, it would prostitute our pre-trial procedures if after pre-trial and the issues have been settled, the plaintiff could then assert a further claim not in contemplation by either party or the Court at the time the pre-trial order was entered. It might well be that plaintiff's present request could be denied under Rule 9(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Moreover reported cases which consider questions analogous to the present one do not support the plaintiff's position; see Hentley v. Atlantic Coast Line R. Co., 5 Cir., 1955, 224 F.2d 929; Montgomery Ward & Co. v. Northern Pacific, D.C.1954, 17 F.R.D. 52; Clark v. United States, D.C.1952, 13 F.R.D. 342. However, the Court rests its decision basically upon the proposition that once the issues are settled in pre-trial proceedings and by a pre-trial order, the case shall go to trial on the issues there determined, except of course to prevent manifest injustice, not here present.
Appellate interference should be kept to a minimum since this is a very large discretion. Ely v. Reading Company, 424 F.2d 758 (3rd Cir., 1970); McKey v. Fairbairn, 120 U.S.App.D.C. 250, 345 F.2d 739 (1965); Hentley v. Atlantic Coast Railroad Co., 224 F.2d 929 (5th Cir., 1955). The primary purpose of a Pre-Trial is to eliminate surprise which would cause unfairness to either side and the Pre-Trial should rule out the "sporting theory of justice".
When an admission or agreement concerning a factual issue is made at the pretrial conference and is incorporated in the court's pretrial order, that issue stands as fully determined as if it had been adjudicated after the taking of testimony at trial, and any issue not listed in the order may be rejected by the trial court. West, Federal Practice and Procedure, § 1527, p. 605; New Orleans Furniture Mfg. Co. v. Great American Ins. Co. (CA 5th 1969) 413 F.2d 1278; Hentley v. Atlantic Coast Line RR Co. (CA 5th 1955) 224 F.2d 929; Barron-Holtzoff-Wright's Federal Practice and Procedure, Vol. 2, § 471, pp. 833, 835, 844. Peremptory instruction leaves nothing for the jury to consider. Their only duty being to sign verdict as directed, and there is no right to argue to jury.