Jones v. Life Insurance Co.
69 S.E. 266
N.C.
1910
Check Treatment
*391 MaNning, J.

Tbis case does not differ, in tbe false representations alleged and proven to tbe satisfaction of tbe jury, from tbe facts alleged in Caldwell v. Ins. Co., 140 N. C., 100; Sykes v. Ins. Co., 148 N. C., 13; Stroud v. Ins. Co., 148 N. C., 54; Whitehurst v. Ins. Co., 149 N. C., 273; Jones v. Ins. Co., 151 N. C., 54. Tbe entire evidence taken at tbe trial is embraced in tbe record and we bave carefully examined it No exception was noted to tbe admission or rejection of evidence offered; and tbe exceptions to bis Honor's charge are addressed exclusively to bis charge upon tbe sixth issue. We can find no evidence in tbe record to support tbe modification and addition to tbe special instruction requested by the defendant. His Honor evidently followed tbe instruction given by tbe trial judge in Caldwell v. Ins. Co., supra, which was approved by tbis Court, but in that case we held there was evidence to support it; in tbis case, we can find none. Tbe only evidence of reassuring statements coming from tbe plaintiff was that such statements were made by a superintendent or agent, and it is not material by which made but these reassuring statements were made several years prior to tbe time fixed by tbe defendant’s witness, Stone. As to Stone’s testimony, tbe plaintiff denied that any such conversation as detailed occurred, and tbe issue of veracity was thus distinctly presented. Tbe defendant was justly entitled to bave tbe instruction predicated upon Stone’s testimony presented to tbe jury. Tbe addition made to tbe prayer was obviously prejudicial to tbe defendant, unless there was evidence to support it, and constitutes reversible error under many decisions of tbis Court. Stewart v. Carpet Co., 138 N. C., 60; Burton v. Mfg. Co., 132 N. C., 17; King v. Wells, 94 N. C., 344; Joines v. Johnson, 133 N. C., 487; Hassard-Short v. Hardison, 117 N. C., 63; Harrison v. Tel. Co., 136 N. C., 381; Bryan v. R. R., 134 N. C., 538. Tbe same principle underlying it, it has been uniformly held that it is not error for tbe trial judge to refuse an instruction not based upon evidence.

But we think tbis error entitles tbe defendant to bave only tbe sixth issue, tbe finding upon which alone was affected by tbe error, submitted to another jury. No exception is taken to tbe charge of tbe court upon tbe other issues. If tbe jury should, *392 at tbe next trial, answer tbe sixth issue Yes, tben tbe defendant will be entitled to judgment for costs; if it shall be answered No, tbe plaintiff will be entitled to judgment. In Holmes v. Godwin, 71 N. C., 306, approved in Burton v. R. R., 84 N. C., 192, Bynum, J., declares: “Tbe power to award a partial new trial, or an inquiry of damages when they have been erroneously assessed without disturbing tbe findings which dispose of tbe merits of tbe case, is both convenient and useful, however delicate and difficult may be its application in particular cases. It certainly should not be exercised except in a clear case.” In Benton v. Collins, 125 N. C., 83, it is said that tbe practice of this Court to order new trials on particular or restricted issues is supported by numerous authorities and cover a long series of years. Many of them are cited in that case. But tbe Court said, which admonition is quoted in Jarrett v. Trunk Co., 144 N. C., 299: “Before such new trials, however, are granted, it should clearly appear that the matter involved is entirely distinct and separate from the matters involved in the other issues, and that the new trial can be had without danger of complication with other matters.” It is obvious to us that the matter involved in the sixth issue submitted by his Honor is entirely distinct and separate from the matters involved in the other issues, and there can be no danger of complications with other matters by limiting the new trial to that issue alone. We so direct.

Partial new trial.