Moss v. . Bowers

*549 Seawell, 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.