Swenson v. Cahoon

Terrell, J.

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 non-performance of a duty when arising under contract or otherwise, while “neglect” means to omit to do or perform ah 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 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 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 imposed 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; McLain v. Arnold, 73 Okla. 52, 174 Pac. 563; Ivy v. Osborne, 152 Tenn. 470, 279 S. W. 384; Davis v. Smith, 130 Mass. 113; Chandler v. Rutherford, 101 Fed. 774; Tate v. Baugh, 264 Fed. 892; King v. Brown, 100 Tex. 109, 94 S. W. 382; Brown v. Wallis, 100 Tex. 546, 101 S. W. 1070.

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 or it is a personal one.

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

Affirmed.

Whitfield, Brown and Buford, J. J., concur. Davis, C. J., concurs specially.