Fagan v. Hazzard , 34 N.C. App. 312 ( 1977 )

BRITT, Judge.

Plaintiff’s assignments of error are based upon the three exceptions above noted. We think the court did not err in its first conclusion but that it did err in its second conclusion.

It will be noted that plaintiff excepted only to the conclusions of law and the judgment, and she has not raised in her brief the question whether the judgment is supported by the findings of fact and conclusions of law. That being true, the scope of our review is confined to the three exceptions noted. Rule 10, Rules of Appellate. Procedure, 287 N.C. 671, 698-699 (1975).

With respect to plaintiff’s first exception and the question of actual damages, clearly plaintiff had the burden of proving actual damages. 6 Strong’s N.C. Index 3d, Evidence § 5. The evidence showed that plaintiff purchased the used piano in 1973 for $150. She attempted to show that while the piano would play manually without the self-player, that she had been damaged to the extent of approximately $1,000 by defendant’s wrongful conversion of the self-player parts. Defendant’s evidence tended to show that the self-player was not repairable and that the piano was just , as valuable, if not more valuable, without the self-player unit as it was with it.

In its first “conclusion”, the court, in effect, said that plaintiff had failed to carry her burden of proving actual damages, therefore, it determined that she had sustained no actual damage. Plaintiff’s assignment as to the first conclusion of law is overruled.

We think plaintiff’s assignment of error relating to the second conclusion of law has merit. In her complaint, she alleged that defendant’s conversion of the self-player parts was willful, wanton and malicious. “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” G.S. 1A-1, Rule 8(d). When defendant’s answer was stricken, plaintiff’s contention that defendant’s conduct was willful, wanton and malicious was established and the trial court erred in finding or concluding otherwise.

Even so, whether punitive damages should be awarded rests in the discretion of the jury, or in the discretion of the court if jury trial is waived. 5 Strong’s N.C. Index 3d, Damages § 17.7. While the awarding of punitive damages in the instant case was solely in the discretion of the trial judge, he based his denial upon an improper premise.

Inasmuch as the court’s second conclusion of law is erroneous, plaintiff is entitled to a new trial on the issue of punitive damages only. With respect to the question of actual damages, the judgment appealed from is affirmed, but with respect to the question of punitive damages, the judgment is vacated.

Affirmed in part, reversed in part and cause remanded.

. Judges Hedrick and Martin concur.