#### TIMOTHY BRUCE, by and through his Guardian ad Litem, DIANE McDONALD, and MILTON BRUCE, Guardian of TIMOTHY BRUCE, a legally incapacitated person v. MEMORIAL MISSION HOSPITAL, INC.

No. 136PA89

(Filed 9 November 1989)

Appeal and Error § 64 (NCI3d)— evenly divided Court — decision affirmed without precedential value

Where one member of the Supreme Court did not participate in the consideration or decision of a case and the remaining six justices are equally divided, the decision of the Court of Appeals is left undisturbed and stands without precedential value.

Am Jur 2d, Appeal and Error § 902.

ON discretionary review of an unpublished decision of the Court of Appeals, 92 N.C. App. 755, 377 S.E.2d 824 (1989), affirming judgment entered on 1 December 1987 in the Superior Court, BUNCOMBE County, by Allen, J., in accordance with a jury verdict for defendant. Heard in the Supreme Court 10 October 1989.

Tharrington, Smith & Hargrove, by John R. Edwards and Burton Craige, for plaintiff-appellants.

Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Russell P. Brannon and Michelle Rippon, for defendant-appellee.

PER CURIAM.

Justice Martin took no part in the consideration or decision of this case. The remaining members of this Court were equally divided with three members voting to affirm the decision of the Court of Appeals and three members voting to reverse. Therefore, the decision of the Court of Appeals is left undisturbed and stands without precedential value. See Hochheiser v. N.C. Dept. of Transportation, 321 N.C. 117, 361 S.E.2d 562 (1987).

Affirmed.