Gallimore v. Sink

218 S.E.2d 181 (1975) 27 N.C. App. 65

Talton Jr. GALLIMORE
v.
Fred C. SINK, Sheriff, Davidson County, Lexington, North Carolina, and Jimmy Varner, Manager, Davidson County, Lexington, North Carolina, as Individuals and
Travelers Indemnity Company, Additional-Defendant.

No. 7522DC333.

Court of Appeals of North Carolina.

September 17, 1975.

Lambeth, McMillan & Weldon by Charles F. Lambeth, Jr., Thomasville, for plaintiff-appellant.

DeLapp, Hedrick & Harp by Robert C. Hedrick, Lexington, for defendants-appellees Sink and Varner.

Walser, Brinkley, Walser & McGirt by Walter F. Brinkley, Lexington, for defendant-appellee Travelers Indem. Co.

HEDRICK, Judge.

The one question for resolution on this appeal is whether the allegations of plaintiff's complaint are sufficient to state a claim upon which relief can be granted.

In North Carolina a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A complaint may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim, or in the disclosure of some fact which will necessarily defeat the claim. But a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Pleadings are to be liberally construed. Mere vagueness or lack of detail is not ground for a motion to dismiss, but should be attacked by a motion for a more definite statement. Sutton v. Duke, 277 N.C. 94, 102-103, 176 S.E.2d 161, 166-67 (1970); Caldwell v. Deese, 26 N.C.App. 435, 216 S.E.2d 452 (1975).

Conversion is defined as "`an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.'" Wall v. Colvard, Inc., 268 N.C. 43, 149 S.E.2d 559 (1966); McNeill v. Minter, 12 N.C.App. 144, 182 S.E.2d 647 (1971). Accord Peed v. Burleson's, Inc., 244 N.C. 437, 94 S.E.2d 351 (1956). "The essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner and in consequence it is of no importance what subsequent application was made of the converted property, or that defendant derived no benefit from his act." 89 C.J.S. Trover and Conversion § 3, pp. 533-34. "[T]he general rule is that there is no conversion until some act is done which is a denial or violation of the plaintiff's dominion over or rights in the property." 18 Am.Jur.2d, Conversion, § 1, p. 158. It is clear then that two essential elements are necessary in a complaint for conversion—there must be ownership in the plaintiff and a wrongful conversion by defendant. Wall v. Colvard, Inc., supra; Vinson v. Knight, 137 N.C. 408, 49 S.E. 891 (1905).

Assuming the truth of the allegations in his complaint, plaintiff has alleged ownership of the silver dollars and pistol. With respect to whether there was a wrongful conversion, plaintiff alleged that the Sheriff took possession of the property; that the Sheriff and defendant Varner transferred the silver dollars to the County General Fund; and that Sheriff Sink transferred the pistol to the SBI. He also alleged that the property was in no way connected with any crime and that he had demanded the return of his property which demands have been wrongfully refused.

Sheriffs in North Carolina can be held liable for conversion. See Mica Industries, Inc. v. Penland, 249 N.C. 602, 107 S.E.2d 120 (1959). Public officials enjoy no special immunity for unauthorized acts, or acts outside their official duty. Nelson v. Comer, 21 N.C.App. 636, 205 S.E.2d 537 (1974); Gurganious v. Simpson, 213 N.C. 613, 197 S.E. 163 (1938); Avery County v. Braswell, 215 N.C. 270, 1 S.E.2d 864 (1939). Whether the acts of the defendants in the case were consistent with their authority as defendants contend is an affirmative defense. The complaint does not disclose such an "... unconditional affirmative defense which [would defeat] the claim asserted or [plead] facts which deny the right to any relief on the alleged claim ...." Sutton v. Duke, supra, 277 N.C. at 102, 176 S.E.2d at 166.

Therefore, construing the allegations of plaintiff's complaint in light of the foregoing principles of substance and procedure, we are of the opinion that plaintiff's complaint is sufficient to state a claim for damages for wrongful conversion of his silver dollars and the pistol.

Judgment appealed from is reversed.

Reversed.

BRITT and MARTIN, JJ., concur.