Legal affairs: Judge’s bio has Salisbury links

Published 12:00 am Friday, October 3, 2008

By Deirdre Parker Smith
dp1@salisburypost.com
In a new biography, “Without Precedent: The Life of Susie Marshall Sharp,” by Anna R. Hayes, readers will find a wealth of history.
And a wealth of connections to Salisbury, not the least of which was her long-term relationship with the late John Kesler, a Salisbury attorney, judge and state senator.
Hayes was able to write this exhaustive history of Sharp, the first woman to serve on the N.C. Supreme Court, because Sharp’s family gave her full access to all the justice’s papers ó letters, journals, legal opinions. Sharp kept everything. She did destroy or discard her early journals, but created an abstract of them.
It is through the journals that Hayes learned of Sharp’s love affairs. Three men captured her attention, but, as Hayes writes, only one captured her heart, and that was Kesler.
They met in law school at the University of North Carolina at Chapel Hill in the late 1920s. Kesler finished first, and although they had been serious, the relationship ended when he came back to Salisbury to open his practice. It would be 20 years before they rekindled their romance.
John Kesler has a thick file at the Post, including pictures and numerous articles.
Kesler died in 1992 at the age of 93, having served in the state Senate in 1945, 1947, 1959 and 1961. He graduated from the University of North Carolina at Chapel Hill law school in 1928.
He was the son of G.C. and Fannie Iddings Kesler of Spencer and graduated from Spencer High School in 1920.
He opened his law practice in Salisbury in 1928. From 1931 to 1933, he was prosecuting attorney for Spencer’s recorder’s court and was a member of Spencer’s Central United Methodist Church. He was also a judge at one time.
Kesler married Sudie Grace West in 1939, she wearing “a navy sheer dress with hat and accessories of navy blue, and had a corsage of pink roses and lilies of the valley” according to the announcement from the July 21, 1939, Salisbury Post. Sudie Kesler died in 1972, at the age of 65, “from an apparent heart attack,” according to her obituary.
They lived in Salisbury and were active at First United Methodist Church.
Their daughter, Frances Kesler Driscoll, lives in Salisbury and is aware of the book, but did not want to comment on the contents.
Kesler formed a law firm in 1961 with Thomas Seay Jr., a longtime judge who still lives in Spencer.
Seay, who has not read the book, says, “They were extremely fine people, all of them.” Seay says he never heard of any improper behavior on Kesler’s part and points out that Kesler can’t tell his side of the story.
He probably won’t read the book “because it might make me mad.” Seay knew Susie Sharp and appeared before her on several occasions. “She was very professional, very nice.”
Seay was also a member of Central Methodist and says Sudie Kesler was his fifth-grade teacher.
He also knew Judge Allen Gwynn from their time on the Superior Court, and his son, Allen Jr. According to author Hayes, Sharp also had an affair with the elder Gwynn, who was one of her most ardent political supporters.
In 1947, Kesler was appointed to the board of trustees of the University of North Carolina.
He was again in the state Senate in 1958 and 1960. He was involved in the Spencer Masonic Lodge for many years, serving as Master from 1931-33.
In his Senate terms, he was on a number of committees, including finance, insurance, military affairs, public welfare and railroads and judicial reform, among others. He’d been chairman of the Rowan County Young Democrats.
Kesler was president of the Rowan County Bar Association in 1953. David Rendleman was vice president and Stahle Linn was secretary and treasurer.
In 1980, Seay presented plaques to Kesler and Tam Shuford for 50 years of service to the law. All three were Spencer High graduates.
State Sen. Paul Smith proposed a resolution honoring Kesler for his “life, service and memory” in March 1993, following his 1992 death. It was passed in April by the N.C. General Assembly.
One of Sharp’s rulings early in her career as a judge affected Rowan Memorial Hospital and all other charitable hospitals.
In Rabon v. Rowan Memorial Hospital, which started in 1959, Homer D. Rabon went to Rowan Memorial for treatment of an infection. There, he said, a nurse mistakenly gave him an injection in the radial nerve of his left arm, leaving it paralyzed permanently.
According to previous N.C. Supreme Court cases, a paying or nonpaying patient injured by a negligent employee of a charitable hospital ó Rowan Memorial ó could receive damages only if the hospital was negligent in hiring an employee or if its equipment was defective.
Precedents said anyone being treated at a charitable hospital consented, by implication, to assume risk and waived any claim for damages. Another case declared the insitution could be held liable for employee negligence, but it did not apply to charitable hospitals. Still another policy argument was that because the hospital supplied charitable care, it was “desirable” to protect it from liability claims.
Sharp at first thought it was an open and shut case in favor of the hospital, but her law clerk produced a massive amount of research in support of overruling prior decisions. Sharp saw that the changing times had outmoded the previous rulings. By the mid-19060s, charity was big business and public hospitals recived money from paying patients, as well as government funding. And the availability of liability insurance shifted the balance toward the institution and away from the individual.
Sharp found that 30 states no longer allowed charitable immunity for hospitals and proposed overturning the N.C. law.
In 1967, a story in the Salisbury Post reads, “A long-standing legal precedent that public hospitals are immune to damage suits was knocked down yesterday by the State Supreme Court.”
It goes on, “Associate Justice Susie Sharp, writing for the majority in the 4 to 3 decision, said the old doctrine of immunity applying to charitable hospitals was formerly the rule in the United States, but is now the exception. …
“… She wrote that private firms and individuals are liable for negligence, as is a physician who treats a charity patient, and a motorist whose negligence causes injury to a passenger.
“… Justice Sharp said Rowan Memorial Hospital isn’t a charitable institution. Such hospitals try to make profits which are reinvested in the hospitals, and they aren’t supported mainly by donations. Paying patients contribute largely to their support, she said.”
It continues, quoting Sharp, “In short, today, some person or agency pays for the service a hospital renders. The hospital has lost its status as a charitable institution.”
Sharp was loyal to her opinions and her lovers, staying in touch with Kesler for decades, although their relationship cooled starting in the 1970s. She felt it was too late for them. She passed the rest of her life in the company of retired Chief Justice William H. Bobbitt, finally, a peer.

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