1. The law entertains an impartial reciprocity of protection as to the rights of the plaintiff and defendant in bail-trover proceedings. Either party prevailing in the case has the same right of election as to whether he will recover damages, the value of the property, or the property and its hire. Where a defendant prevails and elects to take the property and its hire, he is entitled to hire during the time the property is in the sheriff's possession where it is levied upon under bail process and not replevied by either party. This same right also accrues to the plaintiff where he prevails. Accordingly, the trial court here erred in refusing to enter a judgment for the plaintiff for hire during the time the airplane seized under the bail process was in the custody of the sheriff pending the trial, in addition to hire found for the plaintiff between the date of conversion and the date of levy.
2. It being within the power of the appellate court to award such direction to the cause in the trial court as may be consistent with the law and justice of the case, and there being no exception to that part of the judgment awarding the plaintiff hire in the sum of $75 per month for whatever period of time he may be legally entitled to under the facts as found by the court, the judgment is affirmed with direction that the same be amended so as to allow the plaintiff hire for the property during the time it was in the custody of the sheriff pending the trial of the case.
The plaintiff in error, Lamar W. McLaurin, filed a bail-trover action in the Municipal Court of Augusta against Dick Henry, seeking to recover an airplane and its hire. The defendant filed a counterclaim for repairs to the airplane. Neither party replevied the property, and on the trial of the case by consent before the judge without the intervention of a jury, judgment was entered in favor of the plaintiff for the property and in favor of the defendant for the amount of repairs. The judgment also recited the following: "A fair rental value for said plane is $75.00 a month and the plaintiff is entitled to that rental from December 10, 1953, the date of conversion, to February 23, 1954, the date on which the sheriff levied on said airplane. The total rental due the plaintiff is $187.50. Subsequent to the levy of the sheriff on February 23, 1954, the airplane has remained in the possession of the sheriff and the plaintiff is not entitled to rent during that time, since he could have obtained possession of said plane by giving a bond therefor in accordance with the law."
The plaintiff sued out a direct bill of exceptions to this court, complaining that the judgment was erroneous in that it failed to allow rent from the time the sheriff levied on the property until the date of judgment.
1. The sole question for decision here is whether, in a bail-trover proceeding in which the sheriff has seized the property under bail process and neither the plaintiff nor the defendant has replevied it, so that it remains in custodia legis until the final disposition of the case, and on the trial thereof judgment is entered for the plaintiff for the property and its hire from the date of conversion to the date of levy, such judgment is erroneous insofar as it disallows to the plaintiff hire between the date of levy and the termination of the case.
Under Code 107-105, the plaintiff, upon the trial of the case, may elect a verdict (a) for the damages alone, or (b) for the property alone and its hire, if any, or (c) for the value of the property. Under Code 107-202, the defendant may, by giving bond in double the amount of the sworn value of the property, retain it in his possession, or, if he does not give bond and the sheriff seizes the property, the plaintiff, under Code 107-203, may give a like bond and gain its possession. Under section 107-209, when the plaintiff has replevied the property and on the trial of the case fails to recover or dismisses his petition, the defendant has the same remedy, that is, of recovering the property and its hire or the sworn value thereof according to the petition. The law thus "entertains an impartial reciprocity of protection" as to the rights of the plaintiff and defendant in bail-trover proceedings. Trammell v. Georgia Engineering &c. Co., 8 Ga. App. 501 (1) (69 S. E. 921). In Mallary Bros. & Co. v. Moon, 130 Ga. 591, 593 (61 S. E. 401), it was held that the statute allowing the plaintiff to require bail is one of which he may take advantage or not at his election, but the bettering of his security by so doing is not an election to accept the security in satisfaction, and the recognizance should not be deemed a substitute for the property. From this it should be concluded that, under the doctrine of reciprocity of protection, a recognizance given by either party should not be deemed a substitute for the property, and the giving or not giving of a bail bond should not affect the rights of the parties as to other features of the case. (This is not to say that one party to a bail trover suit who actually had the property in possession would not be estopped to claim hire during such period, just as, in the case of Mallary Bros. & Co. v. Moon, supra, one who disposes of the property pending the proceedings is estopped to elect a money judgment thereon.)
As to the right to hire while the property in litigation is in the hands of the sheriff, neither party having elected to replevy, it was held in Underwood Typewriter Co. v. Veal, 12 Ga. App. 11 (76 S. E. 645), that where the right to elect was in the defendant, the plaintiff having dismissed his suit after the levy, the defendant is entitled to hire during the time the articles were in the sheriff's possession, the court stating: "Manifestly, it makes no difference to the defendant whether the property which has been seized and taken from his possession remains in the custody of the law or is replevied by the plaintiff. In either event the defendant is deprived of the possession of his property, and it is the intention of the law to make the plaintiff compensate him for damages arising by reason of such deprivation; and the reasonable measure of such damages is the rental, or hire value, of the property in question." See also Kennedy v. Linder, 168 Ga. 247 (147 S. E. 64); Wilson v. Swords, 22 Ga. App. 233 (95 S. E. 1013). Accordingly, again applying the doctrine of reciprocity of protection, it follows that the plaintiff is likewise entitled, when he prevails in the case, and when he elects to take the property and its hire, to receive hire during the entire period of time between the conversion and the verdict, including that period of time during which the property was in the sheriff's hands.
Accordingly, the judgment is affirmed with direction that the judge of the trial court, within ten days of the receipt of the remittitur from this court by the trial court, amend the judgment by adding to the amount recovered by the plaintiff as hire, additional amounts of rental at the rate found by the court, $75 per month, covering the period of time between the levy and the trial of the case.
Judgment affirmed with direction. Gardner, P. J., and Carlisle, J., concur.