Mabe v. Dillon , 46 N.C. App. 340 ( 1980 )

264 S.E.2d 796 (1980)

Jessie Bottoms MABE
v.
Randy DILLON, d/b/a Walkertown Exxon.

No. 7921DC941.

Court of Appeals of North Carolina.

April 15, 1980.

Legal Aid Society of Northwest North Carolina, Inc. by Ellen W. Gerber, Winston-Salem, for plaintiff-appellant.

Wright & Parrish by Carl F. Parrish, Winston-Salem, for defendant-appellee.

HARRY C. MARTIN, Judge.

Defendant failed to file any answer or other responsive pleading to plaintiff's verified complaint. Plaintiff alleged (1) she is a citizen and resident of Forsyth County, (2) she is the owner of a 1967 Chrysler car, certificate of title attached as an exhibit, (3) on 12 March 1979 defendant wrongfully took possession of plaintiff's car and has deprived plaintiff of possession of the car, (4) plaintiff's car has a value of $500. Plaintiff's complaint states a good cause of action; defendant does not contend otherwise. The allegations in plaintiff's complaint cast upon defendant the burden to file a responsive answer or suffer the effect of the failure to deny the allegations. Allegations in a complaint to which a responsive pleading is required are admitted when not denied by defendant. Rule 8(d), N.C.R.Civ. Proc.; Clary v. Board of Education, 286 N.C. 525, 212 S.E.2d 160 (1975).

In Fagan v. Hazzard, 29 N.C.App. 618, 225 S.E.2d 640 (1976), plaintiff sought damages for conversion of personal property. Defendant failed to file answer and plaintiff did not request entry of default or a default judgment. Our Court held that Rule 8(d) of the North Carolina Rules of Civil Procedure applied and that the averments of the complaint with respect to the conversion were admitted, leaving only the issue of damages to be resolved.

It is obvious in this case that the trial judge was not cognizant that defendant had failed to answer plaintiff's complaint. Nor do counsel address this question in their briefs. Nevertheless, we are bound by the record on appeal. Griffin v. Barnes, 242 N.C. 306, 87 S.E.2d 560 (1955).

We hold the allegations of plaintiff's complaint, except that of damages, are admitted by defendant's failure to answer and the only issue for resolution at trial is that of damages. The trial court erred in granting defendant's motion for directed verdict.

In addition, the judgment must be reversed because the evidence, when considered in the light most favorable to plaintiff, establishes a wrongful conversion by defendant. Even assuming arguendo, which we do not concede, that the evidence establishes as a matter of law a bailment of the car between plaintiff and Ron Church, plaintiff can maintain an action for damages for conversion of the property by defendant. Peed v. Burleson's, Inc., 242 N.C. 628, 89 S.E.2d 256 (1955). Plaintiff is not estopped to assert her title to the car against defendant merely because she left it in the possession of Church, unless she clothed him with some indicia of title. This is true even though the defendant may have been an innocent purchaser. Hawkins v. Finance Corp., 238 N.C. 174, 77 S.E.2d 669 (1953). Plaintiff did not give Church any indicia of ownership of the automobile, such as the key or the certificate of title.

When Church transferred possession of plaintiff's car to defendant without authority, defendant did not acquire any title to the car as against plaintiff. Plaintiff may recover the car from defendant or hold him liable for its value. Id.; 8 Am.Jur.2d Bailments § 86 (1963).

The judgment of the trial court is reversed, and the cause remanded to the District Court of Forsyth County for trial on the issue of damages.

Reversed and remanded.

VAUGHN and CLARK, JJ., concur.