Swenson v. Cahoon , 111 Fla. 789 ( 1933 )

In this State, by reason of statute (Sections 4578-4580 C. G. L., 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 Sou. Rep. 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 bond for wrongs committed by him as a deputy sheriff, when done without any authority of law, and not done in performance of any duty imposed on him by law, sufficient to impose liability on the sheriff himself as the deputy's principal, as expressly provided by Section 4578 C. G. L., supra.

Considering the question here presented as being simply that of where an act of a deputy sheriff has been committed without authority of law, and not in performance of any duty imposed upon the sheriff by law, nor done with the sheriff's approval or under his direction, I think the court below properly held that the sheriff was not liable in his official capacity as sheriff, for the wrongful act of his deputy done by way of a usurpation of a power that neither the sheriff nor his deputy possessed under the circumstances.

ELLIS, J., concurs.

ON PETITION FOR REHEARING.