#### J. H. MOSS, Administratrix of D. J. MOSS, Deceased, v. RAYMOND BOWERS and T. C. KIMEL.

(Filed 13 December, 1939.)

1. Appeal and Error § 40f—

In reviewing a judgment sustaining a demurrer, the Supreme Court will accept the facts alleged in the complaint as true.

2. Sheriffs § 6d — Injury inflicted by escaped prisoner held not foreseeable, and sheriff and deputy were not individually liable therefor.

This action was instituted against the sheriff and his deputy in charge of the jail in their individual capacities. The complaint alleged that the jailer, with the knowledge of the sheriff, left the jail in charge of his minor daughter, and that she, in his absence, and as the agent of defendants, wrongfully unlocked a cell door and permitted two hardened and dangerous criminals to escape, that defendants negligently failed to warn promptly the authorities of the city in which one of the criminals had his home of the fact of his escape, and that this criminal shot and killed plaintiff’s intestate in said town in attempting to commit a robbery and attempting to escape from the city. *Held:*Defendants’ demurrer to the *547complaint was properly sustained, since the injury and death of intestate, considering the facts alleged in the light most favorable to plaintiff, was not foreseeable as the natural and probable consequences of the negligent or wrongful acts alleged.

Appeal bj plaintiff from *Olive, J.,*at June Term, 1939, of DavidsoN.

Affirmed.

The plaintiff administratrix brought this action to recover for the death of the intestate, D. J. Moss, who, it was alleged in the complaint, was murdered by one Godwin, a prisoner in the custody of the defendant sheriff in the common jail of Davidson County, and who, prior to the murder, was permitted to escape through the negligence or wrongful conduct of the sheriff.

The allegations of the complaint, and particularly the recitals of fact therein, taken as true, are to the effect that one James Godwin had been properly committed to the custody of the sheriff, to be held in the common jail of Davidson County, upon a charge of housebreaking and robbery, and felonious assault upon his grandfather; that Godwin had committed other crimes and felonies, and had felonious and criminal inclinations and propensities to commit other felonies and crimes to the full knowledge of the defendant Bowers, sheriff, and his codefendant, T. C. Kimel, who was keeper of the common jail, performing his functions under the direction and authority of the sheriff; that T. C. Kimel, the jailer and codefendant, with the knowledge of the sheriff, left the felons and criminals kept in the custody of the common jail in the care of Lula Belle Kimel, a minor daughter of the jailer, to whom was committed the keeping and custody of the common jail and the keys thereto; that the aforesaid James Godwin while in jail “made love” to the said Lula Belle Kimel and they were sweethearts; and that on account thereof Godwin was being “shown and granted favors and concessions as a felon and prisoner in said common jail by the sympathy and love and at the hands of the said Lula Belle Kimel, agent and servant, acting within the scope of her employment, power and authority, of the defendants and each of them jointly and severally as keepers of said common jail,” and custodians of the said James Godwin and other felons and criminals.

It is further alleged that on 3 October, 1938, while the defendants were absent from the jail, and while the defendant, T. 0. Kimel, was several miles away from the jail attending to his private affairs at his farm, the jail keys having been left with said Lula Belle Kimel, the said Lula Belle Kimel “wrongfully and unlawfully, willfully and wantonly, negligently and knowingly, unlocked the prison doors to said jail and turned over to James Godwin” a pistol and pistol cartridges and permitted and allowed said Godwin and one William Wilson to escape from the jail.

*548As alleged, these two escaping prisoners secretly left the jail, found a taxicab, and, at the point of a pistol, compelled the driver to take them to Lexington and thence to High Point and to the home of James God-win in the latter city, where the escaping “felons” secured another pistol, and, continuing their excursion, bound and gagged the chauffeur of the taxicab, took his cab away from him, and drove to a point near the Adams'Millis Hosiery Mills; that while engaged in an attempt to rob a man at the aforesaid place, and attempting to escape therefrom in the nighttime, at about eight o’clock, the said Godwin “wrongfully and unlawfully, willfully and wantonly, negligently and feloniously, fatally shot and wounded D. J. Moss, plaintiff’s intestate, from which shot and fatal wound the said D. J. Moss died on the 4th day of October, 1938.”

The complaint alleges that the escape of the prisoner, Godwin, wrongfully permitted in the manner described, was the proximate cause of the death of plaintiff’s intestate, and further summarizes as the substance of the negligence charged that it was the duty of the defendants, as keepers of the common jail, “under the conditions, facts, and circumstances existing,” “to exercise toward the public, and especially plaintiff’s intestate, not only ordinary care but the highest degree of care, foresight and forethought, all of which defendants, and each of them, wrongfully and unlawfully, willfully and wantonly, recklessly, indifferently and negligently failed to do, perform, or execute; but on the contrary, as plaintiff alleges on information and belief, when the defendants obtained actual knowledge that their agent, servant, and assistant as keeper of said jail and said felons and prisoners therein, had unlocked the door of said jail and allowed the said James Godwin and the said William Wilson to take a loaded pistol with other pistol cartridges and escape from said jail, with knowledge of the fact that James Godwin was a desperate, vicious, wicked, and cruel criminal and felon, and that his home was in the city of High Point, did not notify the officers of the law or anyone else in or around High Point of the escape of the said Godwin and Wilson, and the facts aforesaid, until several hours after said escape and several hours after the defendants had actual knowledge of the facts, conditions, and circumstances aforesaid, and until after the said J ames Godwin had fatally wounded plaintiff’s intestate as aforesaid.”

Other allegations relate to the damages sustained by the decedent’s estate.

The defendants demurred to the complaint and, from a judgment sustaining the demurrer, the plaintiff appealed.

*Walser ■& Wright, Gaston A. Johnson, and D. H. Parsons for plaintiff, appellant.*

*P. V. Critcher, Martin & Brinlcley, and Phillips & Bower for defendants, appellees.*

*549Seawell, J.

We accept tbe allegations of tbis complaint, and tbe facts therein set up, as true, for tbe purpose of passing on tbe demurrer. *Ins. Co. v. McCraw,*215 N. C., 105; *Toler v. French,*213 N. C., 360, 196 S. E., 32; *Andrews v. Oil Co.,*204 N. C., 268, 168 S. E., 228; *Ballinger v. Thomas,*195 N. C., 517, 142 S. E., 761. As to tbe factual situation tbus appearing, tbe nearest case in point in our own reports seems to be *Sutton v. Williams,*199 N. C., 546, 155 S. E., 160. In tbat ease tbe sheriff was sued in bis official capacity, with tbe surety on bis bond, for having negligently permitted tbe escape of a prisoner, who, driving an automobile, with tbe authority and consent of tbe sheriff, negligently ran into a car driven by tbe plaintiffs in tbat case and seriously injured them.

From tbe law side, however, we get little or no aid to tbe decision of tbe case at bar. A demurrer to tbe complaint was sustained in tbe lower court upon tbe ground tbat tbe official bond of tbe sheriff was not liable under tbe law. Tbe opinion of tbe court upheld tbe judgment sustaining tbe demurrer principally upon considerations respecting such liability.

Tbis Court has recently bad occasion to deal with tbe question of liability of tbe surety and of tbe sheriff in bis official capacity for certain wrongful acts of tbe sheriff (Price *v. Honeycutt, ante,*270), and tbe conclusion reached may not be thoroughly in accord with all tbat was said in *Sutton v. Williams, supra.*But these questions are not involved in tbe case at bar, since tbe sheriff and bis deputy are not sued in their official capacity, and tbe surety is not a party. *Sutton v. Williams, supra,*concludes with tbe significant statement: “Whether tbe sheriff is personally liable for injury proximately resulting from tbe negligence of Williams is a question we are not called upon to decide. Tbe complaint is not specific on tbe point whether Williams at tbe time of tbe injury was on an errand for tbe jailer or tbe sheriff; and tbe allegation tbat be drove tbe car with tbe authority and consent of tbe sheriff, if construed most strongly against tbe sheriff, would raise a question only as to bis personal liability. An officer may be liable personally although not liable on bis bond. *Holt v. McLean,*75 N. C., 347.”

We do not undertake to decide here whether a sheriff who has negligently or wrongfully permitted a prisoner to escape may not, under any circumstances, be held liable to a person who has received an injury at tbe bands of tbe prisoner tbus enlarged. But in tbis case, considered as to its foreseeability, and in tbe most favorable light thrown on tbe transaction in tbe complaint, we do not regard tbe injury and death of plaintiff’s intestate as being within tbe natural and probable consequences of tbe negligent or wrongful acts imputed to tbe sheriff and bis codefendant.

*550"Where it is apparent from the complaint that the injury complained of is too remote to be referred to the negligence of the defendant as the proximate cause, no cause of action is stated and a demurrer made in apt time will be sustained.

The judgment is

Affirmed.