This case is before us on petition for rehearing.
The petition calls our attention to the fact that the statement contained in the opinion filed herein, to-wit: "The record shows that after Mrs. Silas and the Dampiers returned *Page 326 to Gainesville the Dampiers admitted they had Mrs. Camp's property on a trailer which they had left in Alachua, and they all agreed that the property would be returned to Mrs. Camp when Mrs. Silas returned to Florida from Georgia. But, the property was not returned;" is not supported by the record, and we find that this contention is well founded but that is not material to the issues nor to the disposition of the case.
In this case the sheriff testified that Mrs. Camp did not request him to in any wise detain Mrs. Silas; both the sheriff and the deputy testified that the sheriff did not authorize the deputy to arrest or detain Mrs. Silas. According to all the evidence, the deputy had no authority to detain Mrs. Silas and if she was detained by him it was upon his own responsibility.
In Swenson v. Cahoon, opinion filed September 12, 1933, this Court, speaking through Mr. Justice TERRELL, said:
"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 the character it must be committed in an attempt to serve or execute a writ of 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, 75 Okla. 52, 174 P. 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. 328; Brown v. Wallis, 100 Tex. 546, 101 S.W. 1070."
The record here clearly shows that if there was an imprisonment it was by the police officer and deputy sheriff *Page 327 on his own responsibility, for which the plaintiff in error was not liable.
The petition for rehearing is denied.
WHITFIELD, ELLIS and BUFORD, J. J., concur.
DAVIS, C. J., and TERRELL, J., dissent.