
    Levine v. Levine et al.
    
    No. 16776.
    October 12, 1949.
    Rehearing denied November 18, 1949.
    
      Harris, Chance & McCracken, Isaac 8. Peebles Jr., and Fulcher & Fulcher, for plaintiff.
    
      Curry & Curry, and Nathan Jolles, for defendant.
   Candler, Justice.

The wife’s libel for a divorce was based on the sole ground of cruel treatment. The husband, by his answer, denied the specific acts of cruelty charged against him, and prayed that the action be dismissed. After the presentation of evidence, which generally supported the allegations of the pleadings, the jury returned a verdict for the defendant The plaintiff’s motion for new trial, as amended, was overruled, and the exception here is to that judgment. Held:

1. In the brief for the plaintiff in error, all grounds of the motion for new trial, as amended, are expressly abandoned, except the third special ground, which complains of the following portion of the instructions given to the jury: “I charge you that, if the separation in this case was by mutual consent of the parties, or was caused by the misconduct of the plaintiff, then you would not be authorized to grant a divorce.” This charge is abstractly incorrect and will require a reversal of the judgment complained of. It is not necessary to cite authority in support of the proposition that a litigant has the right to have his case submitted to the jury upon the issues actually made, and upon correctly stated principles of the law applicable thereto. By that part of the charge here complained of, the plaintiff was not afforded that right, and this is true for the reason that the incorrect charge in effect instructed the jury that they would be authorized to find against a divorce on the ground of cruel treatment if, because of the same, the parties mutually agreed to separate.

Judgment reversed.

All the Justices concur.  