Swenson v. Cahoon

• Decision Date: 12 September 1933
• Parties: SWENSON v. CAHOON, Sheriff.
• Court: Florida Supreme Court

152 So. 203

111 Fla. 788

SWENSON v. CAHOON, Sheriff.

Florida Supreme Court, Division A.

September 12, 1933

On Rehearing Jan. 27, 1934.

Error to Circuit Court, Duval County; D. T. Gray, Judge.

Action by F. K. Swenson against W. B. Cahoon, as Sheriff of Duval County, Florida. To review a judgment for defendant plaintiff brings error.

Affirmed.

On Petition for Rehearing.

COUNSEL Axtell & Rinehart, of Jacksonville, for plaintiff in error.

Daniel Boggs & Thompson, of Jacksonville, for defendant in error.

OPINION

TERRELL Justice.

Plaintiff in error instituted a common-law action against the defendant in error, as sheriff of Duval county. A demurrer to the declaration was sustained, final judgment was entered, and this writ of error is addressed to that final judgment.

The question with which we are confronted is when and under what circumstances is a sheriff liable for the acts of his deputies under the law of this state.

The declaration discloses that the plaintiff was taken in charge by E. W. Compton, a deputy sheriff, while he (plaintiff) was proceeding on foot to Baldwin to secure gas for his car which had stopped some distance away. On arriving at the filling station, Compton refused to permit plaintiff to alight from his car, but hurried by at great speed and carried plaintiff to Jacksonville and placed him in the common jail of Duval county, where he was incarcerated for two days and released, all of which was done without any process, warrant, or other legal authority.

At common law the sheriff was liable for the acts of his deputies when performed within the scope of their legal authority and by virtue of his office. By statute the sheriff is responsible for the neglect and default of his deputies in the execution of their office. Section 2881, Revised General Statutes of 1920, section 4578, Compiled General Laws of 1927.

'Default' has reference to the nonperformance of a duty whether arising under contract or otherwise, while 'neglect' means to omit to do or perform an act enjoined on one. It does not generally imply carelessness or imprudence, but simply an omission to do or perform some work, duty, or act.

Prior to the enactment of section 2881, Revised General Statutes, supra, which was section 4 of chapter 1659, Acts of 1868, the Act of February 12, 1834 (page 61, Thompson's Digest), was the applicable law on the subject. The latter act authorized sheriffs and clerks of the circuit court to appoint such deputies as were necessary and made them liable for the acts of said deputies as such. In the Revised Statutes of 1892 (section 1247) the act of 1868 was included, but the act of 1834 was not included, so the act of 1868 is now the controlling statute on the subject.

The net result of the act of 1868 when strictly applied was to make the sheriff liable where the deputy failed to perform his duty either through neglect or omission to do so. We do not think this act would have the effect of repealing the applicable common law to the subject-matter, as under that the liability of the sheriff was not determined by a failure to act but by the manner of performing acts done within the scope of his authority.

But whether the common law is or is not in effect is not material. The rule seems settled by the decided weight of authority that, in the absence of statute to the contrary, only those acts of a deputy that involve an abuse of power reposed in him and not those involving a usurpation of power will the sheriff be required to answer for.

In other words, in order to render the sheriff liable for the act of his deputy, the act must be done by virtue of his office as a deputy, and in order that it have that character it must be committed in an attempt to serve or execute a writ or process and as a means to that end, or in acting under a statute giving him the right to arrest without warrant, otherwise he is acting as an individual. Jones v. Van Bever, 164 Ky. 80, 174 S.W. 795, L. R. A. 1915E, 172; McLain v. Arnold, 73 Okl. 52, 174 P. 563; Ivy v. Osborne, 152 Tenn. 470, 279 S.W. 384; Davis v. Smith, 130 Mass. 113; Chandler v. Rutherford (C. C. A.) 101 F. 774; Tate v. Baugh (C. C. A.) 264 F. 892; King v. Brown, 100 Tex. 109, 94 S.W. 328; Brown v. Wallis, 100 Tex. 546, 101 S.W. 1070, 12 L. R. A. (N. S.) 1019.

This rule no doubt works harshly in individual cases, but when the interests of society are considered it is no doubt the better one. The act of the deputy in the instant case, if proven, was reprehensible; but it was a clear usurpation of power and such responsibility as may be charged against the sheriff, for it is a personal one.

For these reasons the judgment below must be, and is hereby, affirmed.

Affirmed.

WHITFIELD, BROWN, and BUFORD, JJ., concur.

CONCURRING

DAVIS Chief Justice (concurring specially).

In this state, by reason of statute (sections 4578-4580, C. G. L sections 2881-2883, R. G. S.), the office of deputy sheriff is one distinctly recognized by law. Under the holding of this court in Stinson v. State, 76 Fla. 421, 80 So. 506, a deputy sheriff does not become an officer, or possess any authority as such, until the filing and approval of the required bond. My view is that the effect of the deputy sheriff's statute is to make the deputy sheriff an independent officer so long as he holds his commission as such deputy, giving the deputy powers and duties as an independent officer equal to those of the sheriff himself, independent of official relation to the sheriff. Thus, in this view, the deputy sheriff may be sued on his own official deputy's...