O.C.G.A. § 44-12-151 (2019)

Annotations

Cross references. Right of action for injuries to personalty generally, O.C.G.A. § 51-10-1 et seq. Law reviews. For article surveying torts law, see 34 Mercer L. Rev. 271 (1982).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION VERDICT FOR PROPERTY OR FOR ITS VALUE VERDICT FOR DAMAGES ALONE VERDICT FOR PROPERTY ALONE AND ITS HIRE General Consideration Absolute title is not essential to maintenance of action of trover. - An interest less than the whole title will be sufficient where it is coupled with lawful possession or an immediate right thereto. Groover v. Savannah Bank & Trust Co., 186 Ga. 476, 198 S.E. 217, 1938 Ga. LEXIS 627 (1938). O.C.G.A. § 44-12-151 must be construed with O.C.G.A. § 44-12-153.

Trammell v. Mallory Bros. & Co., 115 Ga. 748, 42 S.E. 62, 1902 Ga. LEXIS 563 (1902); Walton v. Henderson, 4 Ga. App. 173, 61 S.E. 28, 1908 Ga. App. LEXIS 239 (1908). In construing O.C.G.A. § 44-12-151 with O.C.G.A. § 44-12-153, the plaintiff is limited to a recovery of the property under the tender, and is chargeable with the cost unless it is shown that a previous demand for the property had been made and refused. Downs Motor Co. v. Colbert, 34 Ga.

General Consideration (Cont’d) App. 542, 130 S.E. 592, 1925 Ga. App. LEXIS 402 (1925). O.C.G.A. § 44-12-151 not inconsistent with former O.C.G.A. §§ 53-6-34 and 53-7-93. - There is no inconsistency between O.C.G.A. § 44-12-151, requiring selection of remedies, and former O.C.G.A. §§ 53-6-34 and 53-7-93, requiring collection and preservation of assets of estate and just and timely payment of debts of estate. Howard v. Parker, 163 Ga. App. 159, 293 S.E.2d 548, 1982 Ga. App. LEXIS 2431 (1982) (decided under the pre-1998 Probate Code). Defendant not liable where theft not foreseeable. - The plaintiff may not, by election of remedies, hold the defendant strictly liable for the loss, where the defendant is unable to return the property as a result of a theft of the property by a third party, if the theft was not reasonably foreseeable by the defendant. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 356 S.E.2d 877, 1987 Ga. LEXIS 780 (1987). Dividends. - A party entitled to dividend shares since a certain point in time is also entitled to any dividends attributable to those shares since that time. Drexel Burnham Lambert, Inc. v. Chapman, 174 Ga. App. 336, 329 S.E.2d 595, 1985 Ga. App. LEXIS 1809 (1985). Where the property converted is money, the plaintiff must seek a money verdict; while money can earn interest, it is not personalty of a character for which hire may be recovered and, thus, a plaintiff suing for the conversion of money may recover the amount of money converted, plus interest from the date of conversion. Felker v. Chipley, 246 Ga. App. 296, 540 S.E.2d 285, 2000 Ga. App. LEXIS 1221 (2000). O.C.G.A. § 44-12-151 entertains impartial reciprocity of protection as to rights of plaintiff and defendant in bail trover proceedings. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). Election of alternative verdict. - Where the plaintiff in trover elects to take an alternative verdict, the defendant has the right to rely upon such a verdict being

rendered as may be discharged by the return of the property upon which the action is based. Tuller v. Carter, 59 Ga. 395, 1877 Ga. LEXIS 285 (1877). Either party prevailing in trover proceedings has same right of election as to whether that party will recover damages, the value of the property, or the property and its hire. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). Plaintiff is not required to make election, before conclusion of introduction of evidence, of the kind of verdict which plaintiff will take; therefore, it is not error to permit a plaintiff, after the close of the introduction of evidence, to elect to take a verdict for the property alone. Brooks v. Hartsfield Co., 56 Ga. App. 184, 192 S.E. 459, 1937 Ga. App. LEXIS 316 (1937). Plaintiff may elect verdict at any time before case is submitted to jury or before judgment is rendered by a judge without a jury. Where the plaintiff makes no such election, the judgment in trover is that the plaintiff shall have the property sued for. Phillips v. South Cobb Bank, 117 Ga. App. 137, 159 S.E.2d 495, 1968 Ga. App. LEXIS 1004 (1968). Election of plaintiff is not required to be in writing. Livingston v. Berrien Wood Co., 228 Ga. 190, 184 S.E.2d 458, 1971 Ga. LEXIS 511 (1971). Where plaintiff makes no election, the judgment in trover is that plaintiff shall have the property for which plaintiff sues. Phillips v. South Cobb Bank, 117 Ga. App. 137, 159 S.E.2d 495, 1968 Ga. App. LEXIS 1004 (1968). Sole issue in action of trover is that of title to property in dispute; and the fact that the plaintiff may elect to take a money verdict in lieu of the specific personalty claimed can in no event alter that issue. Citizens Bank v. Mullis, 161 Ga. 371, 131 S.E. 44, 1925 Ga. LEXIS 357 (1925); Cook v. Pollard, 50 Ga. App. 752, 179 S.E. 264, 1935 Ga. App. LEXIS 278 (1935). Order of court rendered void and of no effect where order dismissed the plaintiff’s action, insofar as plaintiff’s right to elect a judgment, without notice to the plaintiff and without giving plain-

tiff an opportunity to be heard. Zachos v. Rowland, 80 Ga. App. 31, 55 S.E.2d 166, 1949 Ga. App. LEXIS 763 (1949). Verdict for Property or for Its Value Right of election not lost by seizure of property. - In action to recover personal property, the plaintiff’s right of election is not lost by suing out a bail process, pending the action, and causing the property to be seized. Hudson v. Goff, 77 Ga. 281, 3 S.E. 152, 1887 Ga. LEXIS 103 (1887). In conditional sale, part paid less reasonable sum for rent must be returned where the vendors elect to take the property. Hays v. Jordan & Co., 85 Ga. 741, 11 S.E. 833, 1890 Ga. LEXIS 144 (1890). Plaintiff cannot recover more than amount of debt standing as security for the converted property when plaintiff elects to take a money verdict. Durden v. Durden, 58 Ga. App. 46, 197 S.E. 493, 1938 Ga. App. LEXIS 182 (1938); Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477, 62 S.E.2d 145, 1950 Ga. LEXIS 618 (1950). Plaintiff may elect to take highest proved value of property between the date of the conversion and the trial. Durden v. Durden, 58 Ga. App. 46, 197 S.E. 493, 1938 Ga. App. LEXIS 182 (1938). Amount of recovery is limited to value laid in petition where the plaintiff chooses as the form of recovery the highest proved value of the property between the time of conversion and the date of the trial. Sappington v. Rimes, 21 Ga. App. 810, 95 S.E. 316, 1918 Ga. App. LEXIS 539 (1918). Highest proved value of property means the highest value which the jury, from consideration of all the proof, finds that the property was worth during the period of time between the date of conversion and the trial, if during that period there was a change in its value. Durden v. Durden, 58 Ga. App. 46, 197 S.E. 493, 1938 Ga. App. LEXIS 182 (1938). Agreed purchase price as stated in check is prima facie evidence of actual value of item at the time of the sale; and, where it appears that the conversion was committed within ten days thereafter,

and there is no evidence showing a different value at the date of the conversion, the agreed purchase price should be taken as the value of the property at the time of the conversion. Stapleton v. Dismukes, 43 Ga. App. 611, 159 S.E. 768, 1931 Ga. App. LEXIS 489 (1931). Property value at conversion time plus additional damages allowed. - Where the value of the property at the time of the conversion may be reasonably determined, and there is no evidence as to the value of the property after the conversion, its value at the time of the conversion may be allowed by the jury, together with interest thereon as additional damages. Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497, 1937 Ga. App. LEXIS 333 (1937). Allowance of additional damages prohibited where the plaintiff elected to take a verdict for the highest proved value at any time between the date of the conversion and the trial. Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497, 1937 Ga. App. LEXIS 333 (1937). Recovery of both highest proved value and hire prohibited. - In an action to recover personal property, the plaintiff is not entitled to recover both the highest proved value at any time between the conversion and the trial and also hire. Hayes v. O’Shield Buick Co., 94 Ga. App. 177, 94 S.E.2d 44, 1956 Ga. App. LEXIS 498 (1956). Interest “eo nomine” is not recoverable in trover action. Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497, 1937 Ga. App. LEXIS 333 (1937). Effect of defendant’s failure to deliver property within specified time. - Where, by election of the plaintiff, the jury returned an alternative verdict for a specified amount of money, to be discharged by the delivery of property within 20 days, and the defendant failed to deliver it within the specified time, the verdict becomes absolute for money. Southern Express Co. v. Lynch, 65 Ga. 240, 1880 Ga. LEXIS 151 (1880). Election for money verdict denied. - A vendor by conditional sale who brings an action of trover against a vendee, and receives from the executing officer the property by giving bond, and who thereaf-

Verdict for Property or for Its Value (Cont’d) ter disposes of the property so as to put it beyond the vendor’s power to produce, is not entitled to elect to take a money verdict. Mallary Bros. & Co. v. Moon, 130 Ga. 591, 61 S.E. 401, 1908 Ga. LEXIS 359 (1908). Instructed jury’s failure to return money verdict ground for new trial. - Where the plaintiffs elected to have a money verdict as to the personal property sought to be recovered, and the court instructed the jury to return a money verdict, the failure to do so is a ground for new trial. Reed v. Reed, 217 Ga. 303, 122 S.E.2d 253, 1961 Ga. LEXIS 435 (1961). Verdict for Damages Alone Plaintiff entitled to elect makeup of damages. - Having a right to elect between a verdict for damages and a verdict for the property, the plaintiff thus has a further right to elect the way damages shall be made up. O’Neill Mfg. Co. v. Woodley, 118 Ga. 114, 44 S.E. 980, 1903 Ga. LEXIS 468 (1903). Recovery options where plaintiff elects to take money verdict. - Plaintiff may recover the value of the property at the date of the conversion, with interest from that date; or plaintiff may recover the value of the property at the date of the conversion with a reasonable hire from that date to the date of the trial, if the property is of a character that hire may be recovered. Douglas Motor Co. v. Watson, 68 Ga. App. 335, 22 S.E.2d 766, 1942 Ga. App. LEXIS 122 (1942); Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477, 62 S.E.2d 145, 1950 Ga. LEXIS 618 (1950). Where a prevailing party elects to take a money verdict, that party may recover the value of the property at the date of the conversion, with interest from that date, or the party may recover the value of the property at the date of the conversion, with a reasonable hire from that date to the date of the trial, if the property is of a character that hire may be recovered. Before the appropriate amount of damages recoverable can be determined, however, the party must choose between interest or

hire from the date of conversion as the measure of damages. Homac, Inc. v. Fort Wayne Mtg. Co., 577 F. Supp. 1065, 1983 U.S. Dist. LEXIS 16545 (N.D. Ga. 1983). Rationale for allowance of additional damages where plaintiff elects to take money verdict, the equivalent of interest, is predicated on the ground that the plaintiff, having been unlawfully deprived of property, is entitled to be fully compensated for the wrong inflicted. Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497, 1937 Ga. App. LEXIS 333 (1937). Measure of damages where plaintiff’s property interest at time of conversion is less than that of absolute ownership will be the value of the plaintiff’s interest therein, whatever it may be. Douglas Motor Co. v. Watson, 68 Ga. App. 335, 22 S.E.2d 766, 1942 Ga. App. LEXIS 122 (1942). Commensuration between property value and purchase price for property not required. - In trover the property alone may be recovered, but if an alternative money verdict for damages is elected, the measure of damages is the value of the property, which need not be commensurate with the amount which the defendant may have paid to a third person as to purchase price. Cook v. Pollard, 50 Ga. App. 752, 179 S.E. 264, 1935 Ga. App. LEXIS 278 (1935). Verdict for principal and interest in separate stated amounts illegal. - Verdict for principal and interest in two separate stated amounts, instead of a lump sum representing the two, is illegal insofar as the interest is concerned. Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497, 1937 Ga. App. LEXIS 333 (1937); Stephens v. Wilson, 58 Ga. App. 24, 197 S.E. 350, 1938 Ga. App. LEXIS 173 (1938). Allowance of interest as additional damages improper absent evidence as to value after the date of conversion. Beaver v. Magid, 56 Ga. App. 272, 192 S.E. 497, 1937 Ga. App. LEXIS 333 (1937). Verdict for Property Alone and Its Hire Plaintiff can elect to take money verdict in an action for personal property and its hire. Twiggs v. Chambers, 56 Ga. 279, 1876 Ga. LEXIS 264 (1876).

Plaintiff must make known an election before court instructs jury. Wilson-Weesner-Wilkinson Co. v. Collier, 62 Ga. App. 457, 8 S.E.2d 171, 1940 Ga. App. LEXIS 302 (1940). Plaintiff is entitled to receive hire during entire period between conversion and verdict, etc., including that period of time during which the property was in the hands of a sheriff. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954). In a trover action where the bank wrongfully repossessed the injured party’s trailer, there was evidence to support the trial court’s award of hire damages under O.C.G.A. § 44-12-151(3), where the injured party’s husband testified that, after the trailer was seized, they were required to lease a trailer and that a fair rental value of the trailer was $100 per week; the trailer was seized on August 17, 1999, and trial began on March 20, 2001. Gateway

Bank & Trust v. Timms, 259 Ga. App. 299, 577 S.E.2d 15, 2003 Ga. App. LEXIS 82 (2003). Defendant cannot restrict plaintiff’s right of recovery. - A defendant in trover cannot, by a tender of the property to the plaintiff, together with reasonable hire as provided in O.C.G.A. § 44-12153, restrict the plaintiff to the right to recover for the property alone and its hire, and thereby prevent the plaintiff from recovering a money verdict in the event it is established upon the trial that there has been a conversion. Hanner v. Trust Co., 49 Ga. App. 867, 176 S.E. 800, 1934 Ga. App. LEXIS 578 (1934). Estoppel to claim hire. - Party to a trover action who actually had the property in possession would be estopped to claim hire during such period. McLaurin v. Henry, 90 Ga. App. 864, 84 S.E.2d 713, 1954 Ga. App. LEXIS 835 (1954).

RESEARCH REFERENCES ALR. Right to maintain a bill for accounting or discovery against one who has stolen or converted goods or received the same, 58 A.L.R. 184. Time for exercise of option under a judgment in replevin for return of property or payment of specified sum, 67 A.L.R. 1497. Judgment in replevin as bar to action by plaintiff for consequential damages for wrongful seizure or conversion of property, 69 A.L.R. 655. Damages for wrongful removal or destruction of fixtures, 69 A.L.R. 914. Waiver of tort and recovery in assumpsit for conversion as dependent on or affected by sale of the goods by the converter, 97 A.L.R. 250. Judgment in action for conversion or to

recover possession of personal property, resulting from defalcation or misappropriation, as res judicata of subsequent action for conversion or to recover possession, 106 A.L.R. 1425. Right to satisfy judgment requiring return of property in defendant’s possession by payment of damages, where return would subject defendant to loss, 159 A.L.R. 546. Alternative judgment in replevin as giving option to either party in regard to payment of damages or return of property, 170 A.L.R. 122. Conclusive election of remedies as predicated of commencement of action, or its prosecution short of judgment on the merits, 6 A.L.R.2d 10.