#### FRED C. GOTT, JR., v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA.

(Filed 22 September, 1937.)

Appeal by plaintiff and defendant from Clement, J., at July Term, 1937, of BuNcombe.

Civil action to recover on oral contract.

Tbe case has been tried twice. At tbe close of plaintiff’s evidence, at tbe first trial, judgment as of nonsuit was entered in tbe general county court, wbicb was reversed on appeal to tbe Superior Court. Defendant appealed to tbe Supreme Court, and tbe judgment of tbe Superior Court was affirmed at Fall Term, 1936, by reason of a two to two division of tbe Court, as reported in 210 N. C., 832, 187 S. E., 572.

On tbe second trial, tbe evidence tends to show that tbe plaintiff, while working for tbe defendant in October, 1930, became disabled from disease; that tbe defendant voluntarily paid tbe expense of bis care and treatment in tubercular sanatoria for more than two years under a plan set up, maintained, and exclusively controlled by tbe defendant at its own expense, without cost to its employees, for tbe benefit of its disabled employees; that tbe plaintiff acquired no rights in tbe plan; that tbe defendant retained tbe discretionary right to allow, to continue, or to discontinue allowances for disability, and that defendant in its discretion discontinued allowances. Tbe evidence fails to show any contract as alleged.

Tbe record fails to disclose any evidence offered or any finding made by tbe court that tbe evidence on this second trial was substantially identical with tbe evidence on tbe former trial, and that tbe merits- are identical.

*831In tbe general county court verdict and judgment were rendered in favor of tbe plaintiff. On appeal by defendant, tbe Superior Court rendered judgment overruling all exceptions taken, except those relating to motions for judgment as of nonsuit, and reversed tbe judgment of tbe general county court on tbe motion for nonsuit at tbe close of all tbe evidence. From tbe judgment of tbe Superior Court botb plaintiff and defendant appealed to tbe Supreme Court, and assigned error.

Don C. Toung for plaintiff.

C. H. Gover, Wm. T. Covington, Jr., and Hugh L. Lohdell for defendant.

Pee Cueiam.

Tbe plaintiff bases bis action upon an alleged oral contract. There is no evidence to support it, and bis action fails.

Finding no error on plaintiff’s appeal, defendant’s appeal is not considered.

On plaintiff’s appeal, Affirmed.

On defendant’s appeal, Dismissed.