We do not think any of the exceptions or assignments of error made by plaintiff can be sustained. We have read with care the charge of the court below and think the law applicable to the facts was correctly state'd. The contentions of both sides were fairly and accurately set forth. The record discloses that the defendant M. A. Watkins filed no answer. The case was tried solely on the liability of Adam Fisher, Jr.
*715The record also discloses that plaintiff tendered the following issues:
“(1) Was the plaintiff’s intestate’s, W. N. Amnions’, death caused by the negligence of the defendant Adam Fisher, Jr., as alleged? (2) What amount, if any, is the plaintiff entitled to recover of the defendant Adam Fisher, Jr.?”
The plea of contributory negligence was set up in the answer of Fisher, and the court below added the issue.
The plaintiff, if she desired to try the liability of M. A. Watkins, under the facts and circumstances of this case, should have signified her intention to do so — but, to the contrary, she submitted an issue solely as to the liability of Fisher. At no time did plaintiff signify that she wanted the liability of Watkins determined in this action, but alone of Fisher. At no time did the plaintiff tender any issue as to Watkins. The plaintiff excepted to the issues tendered, but that was to the contributory negligence issue, as plaintiff herself tendered the other two issues, as to the negligence of Fisher and damages.
N. C. Code, 1935 (Michie), section 584, is as follows: “Issues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues. The issues arising upon the pleadings, material to be tried, must be made up by the attorneys appearing in the action, or by the judge presiding, and reduced to writing, before or during the trial.” Under this section, plaintiff made up the issue alone as to the liability of Fisher.
When a case is tried in the court below on one theory, it cannot be heard in the Supreme Court on another and different theory. It would be unfair to the trial judge. If the plaintiff desired the case tried as to Watkins, how easily she could have done so by presenting an issue; but, on the contrary, the court below was no doubt misled, as the plaintiff tendered the single issue of negligence as tó Fisher, and the case was tried solely on that theory.
In Apostle v. Ins. Co., ante, 95 (98), is the following: “No other question is presented by this appeal, for it is well settled, as said in Hargett v. Lee, 206 N. C., 536, 174 S. E., 498, that an appeal ex necessitate follows the theory of the trial. See Shipp v. Stage Lines, 192 N. C., 475, 135 S. E., 339. This principle is enforced by this Court, because of the constitutional limitation of its jurisdiction as an appellate court. Const. of N. C., Art. IV, see. 8.” Wilson v. Hood, Comr., ante, 200; Pulverizer Co. v. Jennings, ante, 234; Coral Gables, Inc., v. Ayres, ante, 426.
Under the facts and circumstances of the present case, from the position taken by plaintiff in tendering only the issue of negligence in regard to Fisher, it was no error in the court below in not tendering an issue as to Watkins. The plaintiff did not tender an issue as to the negligence *716of Watkins, but excepted to tbe issues tendered. Tbis is not sufficient. Shuford v. Brown, 201 N. C., 17 (25). Nor did plaintiff in tbe court below request any prayers of instruction on tbe questions now complained of — it is now too late. As a rule, tbe court must submit tbe issue arising on tbe pleadings (N. C. Code, 1935 [Micbie], 580-4), but plaintiff waived tbis by tendering only one issue as to Eisber, and tbe case was tried out on that theory.
On tbe whole record, including tbe charge, we see no prejudicial or reversible error. In tbe judgment below there is