#### W. A. BALLINGER, Administrator, v. W. P. RADER.

(Filed 30 November, 1910.)

1. Parent and Child — Insane Child — Wrongful Death — Damages — Liability of Parents — Negligence—Evidence.

Tlie parents of an insane son are not liable in damages for liis killing a person after be bad been in a hospital for tbe ins'ane and discharged by tbe proper authorities as safe to be at large, and when there was no evidence or circumstance tending to show any subsequent change in tbe son or that tbe parents in any manner could have anticipated tbe homicide. Under such circumstances there is insufficient evidence to take tbe case to tbe jury. Tbe estate of tbe insane son would be liable, if be bad any, under tbe principles announced in Morse v. Horne, at this term.

2. Wrongful Death — Damages for Mental Anguish.

Damages for mental anguish cannot be awarded in an action for damages for tbe wrongful killing of another.

Appeal by plaintiff from Webb, J., at tbe May Term, 1910, of Catawba.

Tbe facts are sufficiently stated in tbe opinion of Mr. Chief Justice Ciarle.

A. A. Whitener for plaintiff.

M. U. Yount, W. C. Feimster and W. A. Self for defendant.

Olaee, C. J.

This is an action for wrongful death against tbe mother and father of an insane person who committed a homicide. Tbe action for tbe same matter by the plaintiff against tbe superintendent and directors of a hospital for tbe insane was before this Court, 151 N. C., 383. Tbe demurrer as to them was sustained and tbe action is now prosecuted as to these defendants alone. At tbe close of tbe evidence tbe judge directed a nonsuit and tbe plaintiff appealed.

This action is brought by tbe administrator under Revisal, 59, 60. Tbe judge properly disallowed tbe evidence offered tending to show mental anguish, or loss of services. “Such damages can be assessed only in an action brought by plaintiff in bis own name, if at all.” Byrd v. Express Co., 139 N. C., 273.

Tbe evidence fails to show that tbe defendants were in any *489way responsible for the unfortunate killing of plaintiff’s daughter by their insane son, Lonnie ~W. Eader. The son had been regularly discharged by the authorities of the hospital, upon whom the law imposed the duty of determining whether or not a patient was safe to be at large. These defendants had the right to rely upon the judgment of the hospital authorities, unless there had been a subsequent change in their son’s condition, which is not shown. The homicide was not the natural and logical consequence of Lonnie W. Eader being at large. As was said in this case, 151 N. C., 386, “the discharge of Eader, his absence from the hospital, his presence in Catawba County, and at the church on the day of the homicide was a mere condition which accompanied, but did not cause the injury.”

The evidence does not show that the defendants could have reasonably anticipated the act of Lonnie, who was at church that day, in ordinary course, and who had been invited to be there by the plaintiff.

Upon a review of the evidence we are of opinion that his Honor did not err in holding that it was not sufficient to be submitted to the jury in the support of an allegation that the homicide was caused by the negligence of the defendants.

Lonnie W. Eader was 24 years of age. Still there might have been circumstances which would have tended to show such gross negligence on the part of those in charge of him, as would have made them liable for a result which they might have reasonably anticipated. But such is not the case here. Of course, Lonnie W. Eader himself, if he has any estate, would be liable for damages sustained from any tort committed by him, Morse v. Horn, at this term.

The judgment of the nonsuit is

Affirmed.