Opinion
(Filed 22 September, 1937.)
APPEAL by plaintiff and defendant from Clement, J., at July Term, 1937, of BUNCOMBE.
Don C. Young for plaintiff.
C. H. Gover, Wm. T. Covington, Jr., and Hugh L. Lobdell for defendant.
Civil action to recover on oral contract.
The case has been tried twice. At the close of plaintiff's evidence, at the first trial, judgment as of nonsuit was entered in the general county court, which was reversed on appeal to the Superior Court. Defendant appealed to the Supreme Court, and the judgment of the Superior Court was affirmed at Fall Term, 1936, by reason of a two to two division of the Court, as reported in 210 N.C. 832, 187 S.E. 572.
On the second trial, the evidence tends to show that the plaintiff, while working for the defendant in October, 1930, became disabled from disease; that the defendant voluntarily paid the expense of his care and treatment in tubercular sanatoria for more than two years under a plan set up, maintained, and exclusively controlled by the defendant at its own expense, without cost to its employees, for the benefit of its disabled employees; that the plaintiff acquired no rights in the plan; that the defendant retained the discretionary right to allow, to continue, or to discontinue allowances for disability, and that defendant in its discretion discontinued allowances. The evidence fails to show any contract as alleged.
The record fails to disclose any evidence offered or any finding made by the court that the evidence on this second trial was substantially identical with the evidence on the former trial, and that the merits are identical.
In the general county court verdict and judgment were rendered in favor of the plaintiff. On appeal by defendant, the Superior Court rendered judgment overruling all exceptions taken, except those relating to motions for judgment as of nonsuit, and reversed the judgment of the general county court on the motion for nonsuit at the close of all the evidence. From the judgment of the Superior Court both plaintiff and defendant appealed to the Supreme Court, and assigned error.
The plaintiff bases his action upon an alleged oral contract. There is no evidence to support it, and his 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.