
    BENJAMIN PLUMLEY v. OSCAR C. HEYERDALE.
    
    June 26, 1936.
    No. 30,742.
    
      
      Fraser & Fraser and W. W. Smith, for appellant.
    
      Harry H. Peterson, Attorney General, and Roy G. Frank, Deputy Attorney General, for respondent.
    
      
      Reported in 268 N. W. 201.
    
   Hilton, Justice.

Appeal from an order denying plaintiff’s motion to set aside a verdict directed in favor of defendant and to grant a new trial.

Plaintiff was committed, as insane, to the Bochester State Hospital for the Insane by the probate court of Olmsted county on July 24, 1931. August 23, 1933, after a hearing on a petition to restore him to capacity, plaintiff again Avas found by the probate court to be insane; the petition Avas denied. August 26, 1933, he Aims transferred to the Veterans Hospital at St. Cloud, from which institution he Avas discharged on January 1, 1934.

This action Avas brought to recover damages from defendant, aaJio Avas assistant superintendent of the Bochester hospital during the term of plaintiff’s confinement there. After having heard all the testimony adduced on behalf of plaintiff, the court directed a verdict in favor of defendant.

This suit Avas predicated on the grounds that plaintiff was sane during all the time of his confinement; that he was mistreated and abused, for Avhich defendant Avas responsible; and that defendant had authority to release or could have obtained the release of plaintiff.

The trial court sustained objections to many of the questions asked by plaintiff’s counsel, which apparently Avere intended to prove that plaintiff Avas not insane during the time he was confined. Those rulings are assigned as error. The question of plaintiff’s insanity is not important in this case. There Avas no sliOAving that defendant had the authority to discharge plaintiff even had it been conclusiA'ely proved that plaintiff Avas sane during all the time of his confinement. 1 Mason Minn. St. 1927, § 4524, provides that the superintendents of hospitals for the insane, in certain instances, “may discharge” patients. “In all other cases, patients shall be discharged only by the board of control.” No statutory authority is given to the assistant superintendent to discharge patients, and that authority cannot be presumed merely because an employe has been given the designation “assistant.” Defendant might have had many and varied duties and yet not be possessed of any of the authority belonging to the superintendent. There is nothing in the statute that permits the superintendent to delegate his authority to discharge patients even should he desire to do so.

Plaintiff complains that defendant neglected to recommend that he be discharged. However, plaintiff fails to show that it was the duty of defendant so to do, or that had he done so the recommendation would have been given any consideration. The record indicates that the superintendent had as much, if not more, knowledge of plaintiff’s case than did the defendant. The discharge of a patient involves the exercise of judgment and discretion, and no evidence was offered that defendant violated a duty by not urging the superintendent to exercise the judgment or discretion vested in him.

Plaintiff further contends that he Avas mistreated and abused Avhile in the hospital. For this he seeks to hold defendant liable. It does not appear that plaintiff Avas subjected to undue hardships, abuse, and regulation considering the type of institution in Avhich he Avas incarcerated. There were certain unpleasant conditions, but these Avere corrected Avhen plaintiff objected to them. No evidence Avas produced of any compensable injury. Here again plaintiff also is confronted with the obstacle that no showing Avas made of any authority on part of defendant to establish or alter the rules provided for the care and safeguarding of inmates of the hospital. The contention that defendant had the authority because he “had assumed the authority and * * * used it” is untenable.

Plaintiff claims surprise in that he was unprepared to meet the defense of “lack of authority.” The complaint alleged that one of defendant’s duties was to “advise the discharge and discharge those found cured or not dangerous to themselves or to the public.” The answer Avas a general denial. Lack of authority thus became one of the defenses that could be shown under the pleadings.

The order appealed from is affirmed.  