
    HENDERSON, by next friend, v. DADE COAL CO. et al.
    
    1. As a general rule, persons in charge of a State convict, whether their custody and control of him be lawful or otherwise, are not liable in damages for a criminal tort committed by him while at large, although his being at large was by their permission, or because of their negligence in failing to keep him safely confined. Ordinarily, under such circumstances, the
    1 convict’s wrongful act would be too remote a consequence of his keepers’ misconduct in the premises to render them responsible to the person injured. This rule would, of course, be varied if they were in any way connected with the perpetration of the tort, or had reasonable grounds for apprehending that it would be committed.
    2. The present case falls within the general rule, and not within the exception indicated. Its material facts are summarized, and the conclusion therefrom stated, in the next note.
    3. That a “felony” convict, about thirty-seven years old, who had been continuously in the penitentiary for about twelve years and who had five times escaped therefrom, was “a man in robust and vigorous health, immoral, brutish, devilish, of vicious habits, of violent passions, prone to desirfe for sexual intercourse,” and a person “not restrained by any convictions of right and wrong, or governed by any principles of morality,” and that “all of these conditions and things” concerning him “were well known and were understood” by his custodians, “or ought to have been, because of what they knew of his said person, history, character and surroundings,” did not, without more, afford such cause for apprehending that he would, when an opportunity occurred, commit the' crime of rape upon an unprotected woman, as to subject his custodians to liability in damages for the perpetration by him of this offense at a time when, because of their fault, he was at • large and in the unrestrained control of his own movements.
    Argued January 15-16,
    Decided March 12, 1897.
    Action for damages. Before Judge Reid. City court of Atlanta. July term, 1896.
    
      .Seaborn Wright, Waihim Dean and A. J. & ,T. A. •.Hammond, for plaintiff.
    
      John L. Hophim A Sms, EUis & Gray, Bishop, Andrews cG Hill, Burton Smith and D. W. Meadow, for defendant.
   Lumpkin, Presiding Justice.

The declaration now under review discloses one of the very saddest cases with which it has ever been our fortune to deal. The plaintiff, Miss Maggie Henderson, was at the hands of a brutal convict subjected to injury, wrong and agony, both mental and physical, a recital of which would make one of the darkest pages in our reports. Every member of this bench was deeply moved and affected by the account Avhich the declaration gives of her blighted life. There is not, perhaps, in the annals of litigation a story of Avrong which appeals more pathetically for human sympathy. Were we to .follow the instincts of our hearts, we would be under the strongest impulse to sustain the plaintiff’s action; but as magistrates, under the solemn duty of enforcing what we conscientiously belieAre to be the law of the case, Ave are compelled to hold that the trial court did not err in sustaining the various demurrers alleging that no cause of action was set forth. Omitting any mention of numerous questions the decision of which is not, in the-view we take of the case, in the least degree essential to its-determination, we shall confine ourselves to a very brief discussion of the propositions announced in the head-notes,, from which the nature of the case, so far as now material, will be readily apprehended.

^The case, at last, depends upon the question whether the-custodians of such a convict as is described in the third head-note are legally responsible in damages for the consequences of crimes committed by him while at large and in the unrestrained control of his own movements, by their' permission or because of their negligence in failing to keep him safely confined^ "We have no doubt that, as a general rule, a criminal tort committed by such a convict would be too remote a consequence of his keepers’ misconduct in the premises to render them responsible to the person injured. While cases may arise in which this general rule should be varied, as where it appears that the custodians of the convict were in some way connected -with the perpetration of the tort, or had reasonable grounds for apprehending-that it would be committed, nothing is alleged in the present declaration to bring this case within such an exception. F direct ^ and proximate cause of the injuries inflicted upon Miss Henderson was the independent action of the-convict himself. He, though vicious, brutal &nd infamous,, was nevertheless an accountable human agent. While, according to the plaintiff’s averments, he was not restrained by any convictions of right or wrong, nor governed by any principles of morality, the declaration does not attempt to-allege that he was not a rational person, fully amenable to-the laws both of God and of man. That he was prone to a desire for sexual intercourse did not, by"any means, render him an exception to a law of nature which universally prevails iu the animal kingdom, whether as applied to human beings, or animals of lower orders. Yile as this man was, it cannot he held that the defendants could reasonably have-anticipated that he would, upon, the first opportunity, assault and ravish any defenseless woman whom he'might encounter. He was equally liable to commit some other heinous crime; and they were not bound to presume that he-, would commit any crime at all. The State requires the lessees of convicts, at the expiration of their terms, to furnish them transportation'to the counties in which they were-convicted. Thus the law clearly contemplates that these-criminals shall be set at liberty in the very communities whence they came. It can hardly be questioned that scores, perhaps hundreds of convicts just as bad as the one-now under consideration are, from time to time, set at large-by the law’s command. If there was reason to apprehend that convicts of this depraved type would, upon regaining; their liberty, commit such crimes as that complained of in the present case, it would seem that the true policy of the-law would be to keep them imprisoned during their lives. That such is not the policy of the law is due to the fact that reason for apprehending such outrages’ does not really exist.

The true rule applicable in a case like the present was. recognized and stated by this eiouipt in the case of Perry v. Central Railroad, 66 Ga. 751, wherein it was said that in order to entitle a party to recover damages on account of’ the negligence of another, it should appear that the damages were the natural and proximate result of such negligence; “for should it appear that, but for the intervention of a responsible third party, the defendant’s negligence-would not have caused damage to the plaintiff, then the defendant is not liable to plaintiff, for the reason that the causal connection between negligence and damage is broken-by the interposition of an independent, responsible human-action.” In support of this doctrine, Judge Stewart, who-presided in the place of Chief Justice Jackson, disqualified,, cited Meld on Damages, §§13, 32, 52, 53, 78; Wayne on. Damages, §25 ; Wharton on Negligence, §134; Wait’s Ac•tions and Defenses, title “Damages.” It is true that, in the -case just cited, the action was based upon a tort of an altogether different character, but the principle announced -controls the case at bar.

The case of Belding v. Johnson, 86 Ga. 177, also has some bearing upon the question at issue, it being there held that the death of the plaintiff’s husband, who was. killed by •a man under the influence of liquor, who- when in this condition was violent and dangerous, wás not occasioned by the act of a barkeeper who had fiirnished liquor to the ■slayer when he was already drunk, and had failed to protect the deceased from the homicidal assault made upon him in the barkeeper’s place of business. Although the latter •violated a penal statute of this State in so furnishing the .liquor, it was in effect held that he was not bound to anticipate that this unlawful conduct on his part would result in .a homicide.

A somewhat similar question was dealt with in Shugart v. Egan, 83 Ill. 56. There, the person furnished with the intoxicating liquors was himself, in consequence of abusive language used to another, assaulted and killed. In a sense, the furnishing of the liquor was an indirect cause of his •death; biit the court held it was not the efficient and proximate cause. In a case decided by the Supreme Court of Minnesota (34 N. W. Rep. 22), it appeared that a minor •person of the age of 18, upon invitation of the defendants, drank intoxicating liquors with them and their friends at divers saloons several times during the same evening, some of the liquor being ordered and paid for by the defendants themselves. “He became intoxicated and quarrelsome, and committed an assault upon plaintiff, resulting in serious injury to him,” but “was not incited thereto by the defendants, and it was his own voluntary act. In an action against them by the plaintiff for damages, on the ground that the assault was the result of their acts in furnishing the liquor supplied to the minor,” the reviewing court, held “that the damages were too remote, and were not to be deemed the-natural and proximate result of the alleged wrongful acts of the defendants.” A case which, upon its facts, is still more closely in point, is that of Hullinger v. Worrell, 83 Ill. 220. It was there held that a sheriff who negligently permitted the escape of a prisoner in his custody under an indictment for an assfialt with intent to murder, was not liable in damages for the consequences of a subsequent assault by the escaped prisoner upon the same person upon whom the indictment in question charged that the original assault had been committed. This decision was based explicitly upon the proposition that the act. of the prisoner, after regaining his liberty, was not the natural and probable consequence of the escape. ’

Oases more or less resembling the foregoing are quite-numerous, but it would not be helpful to multiply citations on this line. The rule of law that damages arising ex delicto are not recoverable unless they spring from the negligence or misconduct of the defendant, is as well settled as-any legal principle. The difficulty arises in its application to-given cases. We have been unable to find any case precisely like the present;- but our minds have without difficulty reached the conclusion that none of the lessees of penitentiary convicts, named as defendants, can be made liable for-the crime committed in this instance. Nothing they did, or omitted, was its efficient or approximate -cause. It was-the independent act of another, not standing in any relation to the -defendants which would render ‘what he did imputable to them. The court below was right in sustaining: the demurrers and dismissing the 'action.

Judgment affirmed.

All the Just-ioes concurring..  