Waters v. Dade County, 64-337

Citation169 So.2d 505
Decision Date08 December 1964
Docket NumberNo. 64-337,64-337
PartiesAlmeta WATERS and Mose Waters, her husband, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, George Stringer, and T. A. Buchanan, as Sheriff of Dade County, Florida, Appellees.
CourtCourt of Appeal of Florida (US)

Kelner & Lewis, Miami, for appellants.

Thomas C. Britton, County Atty., and Peter L. Nimkoff, Asst. County Atty., Ferrell & Young, Miami, for appellees.

Before CARROLL, HORTON, and TILLMAN PEARSON, JJ.

HORTON, Judge.

Plaintiff-appellant brought this action against the sheriff, T. A . Buchanan, Stringer, one of his deputies, and Dade County. The complaint alleged in substance that Stringer unlawfully arrested plaintiff and in the process, by use of excessive force, broke her arm. It was further alleged that plaintiff was wrongfully imprisoned, denied medical attention, shackled to a bed, and not informed of her alleged crime. The complaint makes additional allegations which we deem unnecessary to delineate.

The lower court sustained the sheriff's motion to dismiss for failure to state a cause of action, thus giving rise to this appeal. After carefully reviewing the allegations of the compaint, we conclude that plaintiff has alleged sufficient facts to withstand the motion to dismiss. It has long been the rule in Florida that sheriffs are civilly liable for the acts and omissions of their deputies if those acts or omissions transpire within the scope of a deputy's employment and by virtue of the office. Malone v. Howell, 140 Fla.App., 693, 192 So. 224. Under § 30.07, Fla.App.,Stat., F.S.A., '[s]heriffs may appoint deputies * * * and for the (the deputies') neglect and default * * * in the execution of their office the sheriff shall be responsible.' The principle under which the sheriff is held answerable for the actions of his deputies is that while acting officially, the deputies are the sheriff acting. Axiomatic is the proposition that sheriffs cannot be held accountable for all actions of their deputies during the course of their employment. Hence, the line between acts done under color of office and those done by virtue of office has been drawn. Malone v. Howell, supra.

Tortious acts committed by virtue of office are said to involve an abuse of power, whereas tortious acts committed under color of office involve usurpation of power. Malone v. Howell, supra; Holland v. Mayes, 155 Fla.App., 129, 19 So.2d 709.

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6 cases
  • Verlo v. Equitable Life Assur. Soc. of U.S.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 20, 1977
  • Madison v. Gerstein, 29390.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 24, 1971
    ...liability for the acts of his deputy acting within the scope of his official authority and by virtue of his office. Waters v. Dade County, 169 So.2d 505 (Fla.App.1964). The office of Sheriff is a county office created by the Constitution of the State of Florida, Article VIII, Section 6. By ......
  • Mendez v. Blackburn, 37257
    • United States
    • Florida Supreme Court
    • July 16, 1969
    ...of this Court in Holland v. Mayes, Supra, and, also, with the decision of another district court of appeal in Waters v. Dade County 169 So.2d 505 (3d Dist.Ct.App.Fla.1964). We, therefore, proceed to the We must decide whether the courts below were correct in holding As a matter of law that ......
  • Prescott v. Oakley, Case No: 8:16-cv-60-T-27TBM
    • United States
    • U.S. District Court — Middle District of Florida
    • March 16, 2017
    ...30.07; Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1119 n. 12 (11th Cir. 2005); Waters v. Dade Cty., 169 So. 2d 505, 506 (Fla. 3d DCA 1964)Conclusion Accordingly, the Motion to Dismiss Second Amended Complaint (Dkt. 46) is DENIED. Defendants shall respond ......
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