2020 Georgia Code
Title 51 - Torts
Chapter 10 - Injuries to Personalty
§ 51-10-3. Abuse of or Damage to Personalty as Trespass

Any unlawful abuse of or damage done to the personal property of another constitutes a trespass for which damages may be recovered.

(Orig. Code 1863, § 2968; Code 1868, § 2975; Code 1873, § 3029; Code 1882, § 3029; Civil Code 1895, § 3888; Civil Code 1910, § 4485; Code 1933, § 105-1703.)

- For comment, "The Abuse of Animals as a Method of Domestic Violence: The Need for Criminalization," see 63 Emory L.J. 1163 (2014).

Gist of action of trespass to personal property is injury done to possession of property. Duncan v. Ellis, 63 Ga. App. 687, 11 S.E.2d 841 (1940).

When a debtor sued a bank for breach of contract, trespass, conversion, tortious interference with contractual relations, and tortious interference with business relations, a judgment notwithstanding the verdict was correctly granted on the trespass claim because the debtor did not show, under O.C.G.A. § 51-10-3, that the bank abused or damaged the debtor's personal property as the bank, under a management agreement, owned the invoices regarding which there was alleged to have been a trespass. Dalton Diversified, Inc. v. AmSouth Bank, 270 Ga. App. 203, 605 S.E.2d 892 (2004).

Action of trespass to personalty is concurrent with action of trover and conversion, although the two actions are not entirely coextensive. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 356 S.E.2d 877 (1987).

This section defines trespass in its broadest sense, and comprehends any misfeasance, transgression, or offense, which damages another's health, reputation, or property. Cox v. Strickland, 120 Ga. 104, 47 S.E. 912 (1904); Williams v. Inman, 1 Ga. App. 321, 57 S.E. 1009 (1907); King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

When property taken was personalty, and alleged to have been taken without the owner's consent, such action is tortious and a trespass for which damages may be recovered. Lowery v. McTier, 99 Ga. App. 423, 108 S.E.2d 771 (1959).

- When personal property is carried away, the plaintiff need not prove possession if the plaintiff has title to the property. Crenshaw v. Moore, 10 Ga. 384 (1851); Atlanta, Birmingham & Atl. R.R. v. Minchew, 7 Ga. App. 566, 67 S.E. 678 (1910).

Trespass to personalty may be continuous and it consists of any unlawful deprivation of one's possession; this can be done by wrongful levy as well as by a wrongful sale. Atlantic Co. v. Farris, 62 Ga. App. 212, 8 S.E.2d 665 (1940).

Recovery for trespass to personal property is limited to compensation (actual damages), in the absence of aggravations for which exemplary or punitive damages are allowed. Duncan v. Ellis, 63 Ga. App. 687, 11 S.E.2d 841 (1940).

One who aids, abets, or directs by conduct or words, in perpetration of trespass, is liable equally with actual trespassers. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

One who procures or assists in the commission of a trespass, or does an act which ordinarily induces its commission, is liable therefor as the actual perpetrator. King v. Citizens Bank, 88 Ga. App. 40, 76 S.E.2d 86 (1953).

- In a case dealing with a sale and repossession of a business, summary judgment and judgment on the pleadings were properly granted in favor of the buyer on the buyer's breach of contract, trespass to personal property, and conversion claims as the sellers' claim of a breach of an alleged oral agreement that the buyer obtain a liquor license, business permits, and insurance in the buyer's name was meritless because there was no evidence that the oral agreement changed the requirement that the sellers obtain the buyer's written consent to remove equipment from the business premises, or that it added new provisions allowing the sellers to evict the buyer and repossess the business and all of the business's assets upon a breach of the oral agreement. Caldwell v. Church, 341 Ga. App. 852, 802 S.E.2d 835 (2017).

Fact that person removing another's property may be police officer does not operate to change rule of this section, if the person's action in so doing was not authorized by law or some valid municipal ordinance. Vaughn v. Glenn, 44 Ga. App. 426, 161 S.E. 672 (1931), aff'd, 178 Ga. 30, 172 S.E. 28 (1933).

A constable who seizes property by virtue of a process issuing from a court without jurisdiction in a bail-trover case is a trespasser, although the constable may act in good faith and without malice. Minhinnett v. Jackson, 45 Ga. App. 207, 164 S.E. 96 (1932).

A constable who seizes the property of another under a void process issued by a court without jurisdiction, or makes such seizure without benefit of any process at all, is a trespasser and may be sued for damage resulting to the property from the trespasser's illegal act. Reese v. Bice, 87 Ga. App. 519, 74 S.E.2d 476 (1953).

An officer who attempts an illegal seizure without warrant or process of any kind is a mere trespasser; therefore, the officer cannot defend on the ground that the opposite party peaceably surrendered the object to the officer, believing the officer's representations that the officer was acting as an officer of court although the officer was not in fact doing so. Reese v. Bice, 87 Ga. App. 519, 74 S.E.2d 476 (1953).

- Arrestee failed to state a claim of trespass to property based on the fact that officers investigating a situation took a drink from the arrestee's store because the record showed that an officer was given permission by the store clerk to fix a fountain drink and there was no evidence that money or property was taken or stolen by the officers. Lavassani v. City of Canton, 760 F. Supp. 2d 1346 (N.D. Ga. 2010).

Person whose property has been levied on under execution against another may sue for damages on account of trespass, independently of the technical rules controlling cases of malicious use or abuse of legal process, and without the necessity of first filing a claim and obtaining a favorable decision thereon. Duncan v. Ellis, 63 Ga. App. 687, 11 S.E.2d 841 (1940).

A person not a party to a process for seizure of property whose property has been levied on thereunder, has his remedy by an action for damages on account of the trespass against those who caused or made the levy, independently of the technical rules applicable to malicious use or abuse of legal process. Wilson v. Dunaway, 112 Ga. App. 241, 144 S.E.2d 542 (1965).

- If domestic animals, such as oxen and horses, injure any one in person or property when they are rightfully in the place where they do the mischief, the owner of such animals is not liable for such injury unless the owner knows they are accustomed to do mischief; and such knowledge must be alleged and proved. But if they are wrongfully in the place where they do the mischief, the owner is liable, though the owner had no notice that they were accustomed to do so before. Reed v. Southern Express Co., 95 Ga. 108, 22 S.E. 133 (1894); Clark v. State, 35 Ga. App. 241, 132 S.E. 650 (1926).

- When one sues for trespass because the defendant caused process against an outsider to be levied on property which the plaintiff owned and held in lawful possession, in order to authorize the imposition of punitive or exemplary damages there must be evidence of willful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to the consequences. Duncan v. Ellis, 63 Ga. App. 687, 11 S.E.2d 841 (1940); Wilson v. Dunaway, 112 Ga. App. 241, 144 S.E.2d 542 (1965).

- In a dispute involving a homeowners' association's (HOA) claim of a pedestrian easement access across a subdivision lot to a lake, the term "10' PEDESTRIAN ESMT" on the plat was void for uncertainty of description. The lot owners' counterclaims for trespass, theft by taking (for removal of a sign), interfering with the right of quiet enjoyment, attorney's fees, and punitive damages presented jury questions; however, their claim for intentional infliction of emotional distress was subject to summary judgment. The Plantation at Bay Creek Homeowners Association, Inc. v. Glasier, 349 Ga. App. 203, 825 S.E.2d 542 (2019).

Cited in Raleigh & G.R.R. v. Western & Atl. R.R., 6 Ga. App. 616, 65 S.E. 586 (1909); Dean v. State, 151 Ga. 371, 106 S.E. 792 (1921); Whatley v. Manry, 60 Ga. App. 273, 3 S.E.2d 839 (1939); J. & C. Ornamental Iron Co. v. Watkins, 114 Ga. App. 688, 152 S.E.2d 613 (1966); Scott v. Leder, 164 Ga. App. 334, 297 S.E.2d 103 (1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 75 Am. Jur. 2d, Trespass, §§ 11 et seq.

- Measure of damages for destruction of or injury to commercial vehicle, 4 A.L.R. 1350; 169 A.L.R. 1074.

Measure of damages for injury to or destruction of growing crop, 175 A.L.R. 159.

Recovery for mental shock or distress in connection with injury to or interference with tangible property, 28 A.L.R.2d 1070.

What is an action for damages to personal property within venue statute, 29 A.L.R.2d 1270.

Right of defendant in action for personal injury, property damage, or death, to bring in new parties as cross defendants to his counterclaim or the like, 46 A.L.R.2d 1253.

Measure and elements of damages, in action other than one against a carrier, for conversion, injury, loss, or destruction of livestock, 79 A.L.R.2d 677.

Liability for property damage caused by vibrations, or the like, without blasting or explosion, 79 A.L.R.2d 966.

Liability of garageman to one ordering repair of motor vehicle, for defective work, 92 A.L.R.2d 1408; 1 A.L.R.4th 347; 23 A.L.R.4th 274.

Statutes of limitation concerning actions of trespass as applicable to actions for injury to property not constituting a common-law trespass, 15 A.L.R.3d 1228.

Landlord's liability for damage to tenant's property caused by water, 35 A.L.R.3d 143.

Liability for injury caused by spraying or dusting of crops, 37 A.L.R.3d 833.

Personal injury or property damage caused by lightning as basis of tort liability, 46 A.L.R.4th 1170.

Maintainability of burglary charge, where entry into building is made with consent, 58 A.L.R.4th 335.

Liability policy coverage for insured's injury to third party's investments, anticipated profits, good will, or the like, unaccompanied by physical property damage, 18 A.L.R.5th 187.