#### W. A. BOLLINGER v. W. P. RADER et al.

(Filed 1 December, 1909.)

1. Insane Persons — Hospitals—Directors and Superintendent — Discharge — Negligence—Interpretation of Statutes.

Tbe directors and superintendent of a hospital for the insane acting under the provisions of Revisal, 4596, in discharging .or releasing a patient therefrom, cannot be held responsible in damages by the subsequent killing by such patient of another under a charge of negligence. Revisal, 4560.

2. Same — Proximate Cause.

The act of an insane person» in killing another about six months after his discharge or release by three directors and the superintendent of a hospital for the insane under authority conferred by Revisal, 4596, was a mere condition arising from the discharge or release, which the directors and superintendent by the exercise of ordinary care and caution, could not have anticipated, foreseen or expected, and for which they could not be held responsible in damages as arising from negligence on their part.

Appeal from Justice, J., May Term, 1909, of Catawba.

The complaint alleges that the defendants — one of whom is the superintendent and the other three directors of the State Hospital for the Insane, located at Morganton, North Carolina — negligently discharged one Lonnie Eader, an insane patient committed to said hospital, from confinement therein, and *384that six mouths later the said Rader, while insane, killed the plaintiff’s intestate.

The defendants demurred, because the complaint does not state facts sufficient to constitute a cause of action against these defendants, or either of them, individually or collectively:

1. Because it appears from said complaint that defendant John McCampbell is superintendent of the State Hospital for the Insane, at Morganton, N. 0., and the defendants Sbuford, Davis and Amifield are members of the board of directors thereof; that said defendants, by virtue of their said offices, and acting within the scope and limits of authority conferred by law, discharged or released Lonnie W. Rader, a patient, from said hospital; that the said McCampbell and his co-defendants are, by section 4560 of the Revisal of 1905, exempted from all personal liability for the alleged acts and omissions complained of in plaintiff’s complaint.

2. That said John McCampbell and his co-defendants, as appears from said complaint, were acting in their official capacity in the discharge of duty imposed by law and in the exercise of a legal discretion vested in them, and are not liable to plaintiff for discharging said Lonnie W. Rader, of which the plaintiff complains.

3. That said John McCampbell and his co-defendants, in doing the acts complained of in the plaintiff’s complaint, were in the discharge of judicial duties and functions imposed by law, and were acting within the limits of their authority, and are therefore not liable to the plaintiff in this action on account thereof.

4. That the allegations in said complaint, that said defendants, knowing that said Rader was dangerously insane and, notwithstanding said knowledge, negligently caused the said Rader to be discharged from said hospital, do not state facts sufficient to constitute a cause of action against said defendants or either of them.

5. That there are not facts or alleged facts set forth in the complaint of plaintiff which could legally cause the damages claimed by him.

His Honor sustained the demurrer, and the plaintiff appealed.

Witherspoon & Witherspoon, A. A. Whitener and L. G. Caldt-well for plaintiff.

W. D. Turner, W. A. Self and S. J. Ervin for defendants.

Clark, C. J.,

after stating the facts: The defendants were public officers and were acting as such at the time that the said *385Lonnie Rader was discharged by them from further confinement in the said State Hospital. The statute (Revisal, sec. 4596) provides: “Any three of the board of directors of any hospital . . . shall be a board to discharge or remove from' their hospital any person admitted as insane, when such person has become or is found to be of sane mind, or when such person is incurable and, in the opinion of the superintendent, his being at large will not be injurious to himself or dangerous to the community; or said board may permit such person to go to the county of his settlement, on probation, when, in the opinion of the said superintendent, it will not be injurious to himself or dangerous to the community, and said board may discharge or remove such person upon other sufficient cause appearing to them.”

The defendants discharged Lonnie Rader under and pursuant to the said statute, and this discharge of Lonnie Rader is complained of as a negligent act on their part.

We need not discuss the other grounds of demurrer, which were ably and interestingly argued before us by counsel for both sides, for the first ground of the demurrer is conclusive. The statute under which tlm hospital was created, organized and now exists provides that “No director or superintendent of any State hospital shall be personally liable for any act or thing done under or in pursuance of any of the provisions of this chapter.” Revisal, sec. 4560. The discharge was made under, and by virtue of the authority conferred by the above section (4596) of the Revisal.

But we will add that it does not seem to us that the discharge of Rader, on 5 March, even if negligently made, was the proximate cause of the death of the young girl, which occurred 13 September following. The allegation is in the nature of "Post hoc, ergo propter hoc.”

The defendants could not, by the exercise of ordinary care and caution, have anticipated, foreseen or expected that the death of the plaintiff’s intestate would follow as the natural result of their act in discharging Rader from the hospital.

Their erroneous or mistaken opinion or judgment — that Lonnie Rader was sane, or insane — that his being at large would not be injurious to him or 'dangerous to the community, or that there were other sufficient reasons why he-should be discharged- — • and their act in discharging him, did not cause her death. It may be that if they had kept- Rader confined in the State Hospital he might not have killed her; but it is equally true that if *386be bad never been born or bad never become insane be would not bave killed ber. Tbe discharge of Rader, bis absence from tbe hospital, bis presence in Catawba County, and bis presence at church on tbe day of tbe homicide, was a mere condition which accompanied, but did not cause, tbe injury. Like tbe presence of the freight in tbe depot at Lincolnton when the depot was accidentally destroyed by fire (Extinguisher Co. v. Railroad, 137 N. C., 278), or the lumber on tbe right of way of the railroad at Elk Park when the hotel was destroyed by fire (Bowers v. Railroad, 144 N. C., 684), the absence of Lonnie Rader from the hospital was a mere condition which 'accompanied, but did not cause, tbe injury.

Counsel pertinently ask, is the absence of the policeman from his beat and this dereliction of duty on his part tbe cause of tbe burglary which happens in bis absence and which bis presence would bave prevented ? Is tbe act of the Governor, who pardons a criminal, tbe cause of tbe homicide which such criminal subsequently commits? Is tbe conduct of tbe judge or justice in declining to remove a prisoner tt> another jail for safe-keeping tbe cause of the death of tbe prisoner in tbe event be is banged by a mob ?

The judgment sustaining tbe demurrer is

Affirmed.