#### STATE OF NORTH CAROLINA ex Rel. A. B. HAYES, Administrator of the Estate of WILLIAM RALPH HAYES, v. C. E. BILLINGS, JR., Sheriff and Custodian of the WILKES COUNTY JAIL; THE COUNTY OF WILKES; and THE TRAVELERS INDEMNITY COMPANY OF HARTFORD, CONN.

(Filed *7*April, 1954.)

*1.*Counties § 24—

The doctrine that a county is not liable for the negligence of its officers and agents in the exercise of governmental functions obtains in this jurisdiction.

2. Same—

A county acts in a purely governmental capacity in erecting and maintaining a jail, and in an action to recover for wrongful death allegely resulting from the negligence of the county in this respect, demurrer is properly sustained. The exception to the general rule of nonliability in such instances in regard to municipalities is not extended to counties.

3. Sheriffs § 6a—

Allegations to the effect that defendant sheriff took custody of a mental incompetent for the purpose of putting him in place of safety, but did not lock the incompetent in a room or cell, but permitted him to roam at large in the upstairs hallway of the jail, under circumstances from which injury should have been anticipated, resulting in the incompetent’s falling down a fifteen foot well or open space to his death, *is held*sufficient to state a cause of action against the sheriff for negligence.

Appeal by plaintiff from *Nettles, J.,*at January Term, 1954, of WlLKES.

Civil action by plaintiff to recover damages for tbe alleged wrongful death of his intestate, William Ralph Hayes, who, while incarcerated in the Wilkes County jail, fell from an upstairs hallway to a concrete floor beneath, due to the alleged joint and concurrent negligence of the defendants, heard below on demurrer to the complaint.

The plaintiff's allegations may be summarized as follows :

1. The intestate, William Ralph Hayes, shortly prior to 25 April, 1953, suffered a nervous breakdown of a temporary nature and became mentally unbalanced, violent, unable to control his acts and movements, and “oblivious to danger with respect to his own bodily health or life.” Due to this condition, the intestate’s parents called the defendant C. E. Billings, Jr., Sheriff of Wilkes County and custodian of the county jail, and explained to him the condition of their son and requested that the “defendant Billings place intestate in a place of safety where he would not be in position to harm himself or . . . endanger his life.”

2. “. . . with full knowledge ... on the part of the defendant Billings that the . . . intestate was without his mental capacity and had no *79knowledge as to bis acts . . . and . . . was likely to do violence to himself because of bis mental condition . . . tbe . . . defendant Billings took custody of the . . . intestate for the purpose of placing him in a place of safety, and . . . placed him in tbe county jail of Wilkes County.”

3. When tbe defendant Billings placed intestate in the jail, be did not lock him in a room or cell “but negligently and carelessly permitted him to roam in tbe upstairs hallway of tbe jail; that tbe Wilkes County jail is negligently and carelessly constructed and maintained in that at tbe end of tbe upstairs hallway, there is a large well, or open space with a winding stairway permitting a drop of some 12 to 15 feet from tbe upstairs to a concrete floor on tbe downstairs portion of tbe jail; that said well or open space is negligently and carelessly maintained without adequate guardrails or other means of protection with respect to people falling from one floor to tbe other, especially persons under disability; that as tbe proximate cause (result) of tbe negligence and carelessness of tbe defendant Billings in permitting tbe . . . intestate to be free in tbe upstairs hallway of tbe jail and tbe negligence in tbe construction of tbe jail in tbe manner set out above, and tbe maintenance of tbe jail in tbe manner set out above, tbe . . . intestate fell from tbe upstairs hallway of tbe jail to tbe concrete floor below sustaining injuries from which be later died.”

4. “. . . tbe defendant Billings was negligent, which negligence was one of tbe proximate causes of the death of tbe . . . intestate in tbe following respects, to-wit:

“(a) In that with full knowledge of tbe mental condition of tbe . . . intestate, be failed to lock tbe . . . intestate in a place of safety but permitted him to be free in a dangerous and hazardous place, knowing full well, or being in a position where be should have known full well, that tbe . . . intestate was likely to suffer death or great bodily barm.

“(b) In that, knowing tbe hazardous and dangerous condition with respect to said well or open space, be failed to take proper safeguards with respect to tbe same.”

5. “That tbe defendant, County of Wilkes, was negligent, which negligence was one of tbe proximate causes of tbe death of tbe . . '. intestate in tbe following respects, to-wit :

“(a) In that said jail was negligently and carelessly constructed for tbe reason that there was a deep well or open space from tbe first floor to tbe second floor built in said jail, which space was hazardous on its face and which dangerous and hazardous condition was known to tbe governing body of said defendant county.

“(b) In that said jail was maintained with tbe knowledge of tbe governing body of tbe defendant County with an open space or well of tbe depth of fifteen feet in the end of said jail, without said open space being *80properly safeguarded to prevent injury and death to the inmates of said institution, especially those inmates with handicaps, mentally and physically.”

The defendants Billings and Wilkes County demurred to the complaint for failure to state facts sufficient to constitute a cause of action. The defendant Indemnity Company, surety on the defendant Billings performance bond, filed no demurrer, but its time for answering was extended by consent until after the final determination of the demurrer.

The trial court entered judgment sustaining the demurrer and dismissing the action as to Wilkes County, and sustaining the demurrer, with leave granted the plaintiff to amend, as to the defendant Billings.

From the judgment so entered the plaintiff appeals.

*W. H. McFlwee, Jr., and Trivette, Ilolshouser & Mitchell for plaintiff, appellant.*

*Whicker & Whicker and Hayes & Hayes for defendants, appellees.*

JohnsoN, J.

The doctrine of governmental immunity, which shields a county and its innocent taxpayers from liability for the negligence of its officers in the exercise of governmental (as distinguished from proprietary) functions, obtains with all its rigor in this jurisdiction. *Jones v. Commissioners,*130 N.C. 451, 42 S.E. 144; *Keenan v. Commissioners,*167 N.C. 356, 83 S.E. 556; *Rhodes v. Asheville,*230 N.C. 134, 141, 52 S.E. 2d 371. Our decisions are in accord with the great weight of authority elsewhere: 14 Am. Jur., Counties, Sections 48, 49, and 50; 20 C.J.S., Counties, Sections 2.15 and 220.

A county acts in a purely governmental capacity in erecting and maintaining a jail, and is therefore not liable to a person imprisoned or locked up therein for injuries sustained by reason of its improper construction or negligent maintenance. See *Manuel v. Commissioners,*98 N.C. 9, 3 S.E. 829; 41 Am. Jur., Prisons and Prisoners, Sec. 18; Annotations: 46 A.L.R. 94; 61 A.L.R. 569.

True, as an exception to the general rule that the State and its subordinate divisions of government are immune from tort liability, we have a line of decisions which recognizes the principle enunciated in *Lewis v. Raleigh,*77 N.C. 229, to the effect that a municipality is liable for injuries proximately caused by its negligent construction or maintenance of a prison or lockup. See *Moffitt v. Asheville,*103 N.C. 237, 9 S.E. 695; *Shields v. Durham,*116 N.C. 394, 21 S.E. 402; *S. c.,*118 N.C. 450, 24 S.E. 794; *Coley v. Statesville,*121 N.C. 301, 28 S.E. 482; *Nichols v. Fountain,*165 N.C. 166, 80 S.E. 1059; *Hobbs v. Washington,*168 N.C. 293, 84 S.E. 391; *Parks v. Princeton,*217 N.C. 361, 8 S.E. 2d 217; *Dixon*
      *81
      *v. Wake Forest,*224 N.C. 624, 31 S.E. 2d 853; *Gentry v. Hot Springs,*227 N.C. 665, 44 S.E. 2d 85.

However, in *Manuel v. Commissioners, supra*(98 N.C. 9), tbis Court refused to extend the doctrine of *Lewis v. Raleigh*so as to make it applicable to counties, and we are not disposed in the instant case to so extend the scope of this exception to the general rule of nonliability, which according to the text writers obtains in no other jurisdiction. 41 Am. Jur., Prisons and Prisoners, Sec. 18; Annotation, 46 A.L.R. 94, 97 *et seq.*See also *Shaw v. Charleston,*57 W. Va. 433, 50 S.E. 527.

The judgment sustaining the demurrer and dismissing the action as to "Wilkes County will be upheld. *Scott v. Veneer Co., ante,*73.

This brings us to a consideration of the sufficiency of the allegations as to the defendant Billings, Sheriff'and custodian of the "Wilkes County jail. Our study of the complaint leaves the impression that the allegations thereof when liberally construed in favor of the plaintiff, as is the rule on demurrer, are sufficient to state a cause of action for negligence against the defendant Sheriff and overthrow the demurrer as to him. See *Dunn v. Swanson,*217 N.C. 279, 7 S.E. 2d 563; *Davis v. Moore,*215 N.C. 449, 2 S.E. 2d 366; 47 Am. Jur., Sheriffs, Police, and Constables, Sections 26 and 42; G.S. 162-22; G.S. 109-34.

The results, then, are:

As to the defendant County of Wilkes: Affirmed.

As to the defendant Billings : Eeversed.