Thayer v. Chrysler Leasing Corp. , 5 N.C. App. 453 ( 1969 )

Mallaed, C.J.

The plaintiff asserts that the following questions are presented on this appeal:

“1. Did the trial court err in refusing to allow into evidence the discussions and decision that had been reached by the plaintiff and his wife concerning her return to work after their son started to school?

2. Did the trial court err in refusing to allow into evidence the amount, as of the time of trial, to which the State of North Carolina had increased the salary, solely by reason of general wage increases without regard to merit, of a person who held the same position at North Carolina State University that Mrs. Thayer held on December 31, 1962?

3. Did the trial court err by allowing the motion of Echlin Manufacturing Company for judgment as of nonsuit?

4. Did the trial court err in refusing to hold that Echlin Manufacturing Company would be liable to the plaintiff if the jury should find from the evidence that the automobile being operated by defendant Miller was provided and maintained for him and entrusted to him on a full time basis by Echlin Manufacturing Company with authority to operate it for the business of Echlin and for the personal use, pleasure and convenience of defendant Miller?

5. Did the trial court err in failing to instruct the jury that they should consider changes in cost of living or in purchasing power of money in determining the amount of damages plaintiff is entitled to recover?”

Considering the first two questions presented, we find the following in Bank v. Stack, 179 N.C. 514, 103 S.E. 6 (1920):

“The relevancy of evidence is frequently difficult to determine, . . . All the authorities are agreed that if the evidence is merely conjectural or is remote, ... it should be rejected,

In the case before us, the evidence which the plaintiff sought to introduce relative to Mrs. Thayer’s return to work at some future date and of increases in salary was too remote to be of any probative value in assessing the damages suffered by. the plaintiff. Mrs. Thayer was a housewife at the time of the collision and the evidence in this case of conversations between her and her husband, and his conclusions with respect thereto, relating to her return to work after their son began school was merely speculative and conjectural as to whether she would in fact return to work. Exclusion of this evidence was not error. Fox v. Army Store, 216 N.C. 468, 5 S.E. 2d 436 (1939). The plaintiff was allowed to introduce evidence of the amount of salary Mrs.'Thayer was earning at the time she resigned to havener baby, but was not allowed to introduce into evidence what her salary probably 'would have been had she remained employed. “In determining future earning capacity, prior earnings are admissible in evidence if there is a reasonable relation between past and probable future earnings.” Smith v. Corsat, 260 N.C. 92, 131 S.E. 2d 894 (1963). In the present case, there is no evidence that Mrs. Thayer in fact intended to return to work at her old position. It was not error for the trial judge to exclude evidence as to the present salary range of Mrs. Thayer’s old position at North Carolina State University. See also note in 18 N.C.L.R. 239 as to admissibility of prior earnings in determining future earning capacity.

On the motion of nonsuit as to Echlin, the trial judge was required to take plaintiff’s evidence in its most favorable light. When so viewed, all the evidence affirmatively discloses that Miller was on vacation at the time of the collision and was not acting within the course and scope of his employment with Echlin.

The fourth question raised by the appellant presents the contention that the family purpose doctrine should be extended to include the situation presented by the present case. We do not think that the doctrine of respondeat superior (out of which the family purpose doctrine grows) should be extended to a point where an employer is liable, nothing else appearing, merely because an employee has the right to use an automobile leased by it when the employee is off duty. The automobile involved here was owned by Chrysler Leasing Corporation.

In considering the fifth and final question presented by the appellant, suffice to say, we are of the opinion and so hold that it was not necessary or proper for the trial judge to instruct the jury that the purchasing power of the dollar has diminished in the last few years. We have carefully reviewed all the assignments of error and find no prejudicial error.

For the reasons stated, the judgment of the trial court is

Affirmed.

BRitt and Paricer, JJ., concur.