Gould v. North Carolina State Highway and Public Works Commission

• Decision Date: 11 January 1957
• Docket Number: No. 458,458
• Citation: 245 N.C. 350,95 S.E.2d 910
• Parties: Geneva GOULD, Administratrix of the Estate of Eleanor Rush, deceased, v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION.
• Court: North Carolina Supreme Court

Page 910

95 S.E.2d 910

245 N.C. 350

Geneva GOULD, Administratrix of the Estate of Eleanor Rush, deceased, v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

No. 458

Supreme Court of North Carolina.

Jan. 11, 1957

Taylor & Mitchell, Raleigh, John H. Rennick, Wadesboro, for plaintiff appellee.

R. Brookes Peters, Kenneth Wooten, Jr., Raleigh, for defendant appellant.

WINBORNE, Chief Justice.

A careful reading of the record and case on appeal, here presented, reveals evidence from which the findings of fact made by the Deputy Hearing Commissioner and by the Full Commission clearly appear, or may be fairly inferred. The conclusions of law follow as a matter of course. Therefore elaboration of the evidence, and discussion of legal principles seem unnecessary.

And while there is a motion in this cause to dismiss the appeal for failure of appellant to comply with our rules as to assignments of error, which motion is not without merit, we have concluded that the appeal should be disposed of as hereinabove indicated--rather than by dismissal.

Hence, after giving due consideration to the record and case on appeal as presented, the judgment from which appeal is taken is

Affirmed.

JOHNSON, J., not sitting.

PARKER, Justice (dissenting).

These facts were found by the Hearing Commissioner, which facts the Full Commission adopted as its own: Plaintiff's intestate, Eleanor Rush, during her life was never gainfully employed for any period of time, with the exception of two weeks that she worked as a domestic servant, and for a certain period of time that she worked on Saturdays. Eleanor Rush served two sentences in the State's Prison for violating the criminal laws of this State, and while serving these two sentences she was a most unruly prisoner. Sometime prior to 20 August 1954, she was confined in an isolated cell of the prison for violating the prison rules. This cell was situate in a wing of the hospital at the prison. Prior to the night of 20 August 1954, the furnishings of this cell, with the exception of a mattress which was left lying on the floor, had been removed, because Eleanor Rush had endeavored to damage the furnishings. About 10:00 p. m. on 20 August 1954, Eleanor Rush and another inmate in an isolation cell began yelling and cursing in a loud and boisterous manner. I. D. Hinton, Superintendent of the Prison, heard the yelling and cursing of Eleanor Rush and the other inmate, and went to the isolation ward, and ordered them to be quiet as they were disturbing other prisoners, especially those who were ill and in the hospital. After Hinton left, Eleanor Rush and the other prisoner again began to yell and curse in a boisterous manner. Whereupon Hinton, with other prison employees, returned to the two cells with restraining belts. One of the guards applied a metal cuff to the wrist of the deceased, threby bringing her under submission. Then a leather restraining belt was placed about her body, and her two arms were buckled to the belt. After this was done, Eleanor Rush continued boisterous. Whereupon a hand towel about 18 inches wide and 32 inches long was made into a gag, and placed in her mouth between her teeth, and tied behind her head. During the entire time that the gag was being applied, Eleanor Rush was violently resisting, and due to her resistance two guards had to hold her, one on either side. Thereafter a restraining belt and gag were also applied to the other prisoner, who had been causing the disturbance. After the belt and gag had been applied to the other prisoner, Eleanor Rush removed the gag from her mouth, and began again to yell and curse. Whereupon Hinton and other employees of the prison returned to her cell, and two towels were placed in her mouth and each was tied behind her head slightly tighter than the first gag. After the two towels were applied, Hinton had a nurse to check to see that they were not interfering with her breathing. While one of the gags was being applied to the mouth of Eleanor Rush, the person applying the same negligently injured her neck, thereby causing her to suffer a dislocation of the neck. The dislocation at the time did not cause a compression of the spinal cord. After the two gags had been applied, Hinton and the employees...