{ "id": 4160437, "name": "REGINALD DUDLEY JACKSON, Plaintiff v. CHANCE MITCHELL CARLAND, Individually, and CARLAND FORD TRACTOR, INC., Defendants", "name_abbreviation": "Jackson v. Carland", "decision_date": "2008-09-02", "docket_number": "No. COA07-1122", "first_page": "432", "last_page": "444", "citations": [ { "type": "official", "cite": "192 N.C. App. 432" } ], "court": { "name_abbreviation": "N.C. Ct. 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App.", "case_ids": [ 8916392 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "266", "parenthetical": "citation omitted" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0259-01" ] } ], "analysis": { "cardinality": 1087, "char_count": 31059, "ocr_confidence": 0.723, "pagerank": { "raw": 5.032143049897485e-08, "percentile": 0.3164145863330256 }, "sha256": "53c8e7ad1ff752c8746a4a3daf66851a8b320c00429943d9bd4c556571884155", "simhash": "1:87a9dc6a565ef1f6", "word_count": 4992 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and ARROWOOD concur." ], "parties": [ "REGINALD DUDLEY JACKSON, Plaintiff v. CHANCE MITCHELL CARLAND, Individually, and CARLAND FORD TRACTOR, INC., Defendants" ], "opinions": [ { "text": "McCullough, Judge.\nDefendants appeal from a jury verdict awarding plaintiff $275,000 in damages. We remand for a new trial.\nFACTS\nOn 26 August 2003, Reginald Jackson (\u201cplaintiff\u2019) and Chance Carland (\u201cChance\u201d), an employee of Carland Ford Tractor, Inc. (\u201cCarland Ford Tractor\u201d), were involved in an automobile collision. In addition to being an employee of Carland Ford Tractor, Chance was also the son of the company\u2019s owner, Tony Carland. Chance was driving a company truck at the time he struck plaintiff\u2019s vehicle.\nAfter colliding with the rear of plaintiff\u2019s truck, Chance left the scene of the accident and drove to an abandoned restaurant nearby. He was followed by Harry Roberts, who observed the accident and reported it to the State Highway Patrol. Shortly after receiving this report, Trooper Chris Goodson arrived at the restaurant to determine if the truck parked near the restaurant was the vehicle that had been involved in the earlier collision. When he arrived, Trooper Goodson found Chance circling the truck, trying to determine the extent of the damage. Trooper Goodson testified that had he not received the tip from Mr. Roberts regarding the vehicle\u2019s location, he would not have been able to locate it.\nOn 28 November 2005, plaintiff filed a complaint against Chance Carland and Carland Ford Tractor, Inc. (\u201cdefendants\u201d), alleging that Chance\u2019s negligence was the proximate cause of the 26 August 2003 accident, and that Carland Ford Tractor was liable for Chance\u2019s negligence under the doctrine of respondeat superior. Thus, plaintiff sought to recover damages for, inter alia, his medical expenses, loss of earnings, decreased earning capacity, mental and/or emotional distress, disability, and pain and suffering.\nOn 12 April 2007, plaintiff\u2019s action was heard before a jury in Henderson County Superior Court. As an initial matter, defendants stipulated (1) that Chance Carland had negligently caused the accident, and (2) that Chance Carland had permission to use the truck owned by Carland Ford Tractor. Following defendants\u2019 stipulations, plaintiff put forward evidence to support his remaining claims. According to plaintiff, the collision with Chance\u2019s truck caused his head to strike the top of his pickup cab and his body to then hit the back of his seat. Dr. Jonathan Sherman testified that as a result of these injuries, plaintiff began to experience neck pain and was diagnosed with cervical extension syndrome, which he referred to as a \u201cwhiplash injury.\u201d Although he received several medications, this pain persisted. Plaintiff was later diagnosed with a herniated disc, which, according to testimony provided by Dr. Sherman, was directly correlated to the injuries he sustained from the 26 August 2003 accident.\nPlaintiff also presented testimony from several other witnesses. Among these witnesses were Trooper Goodson and Mr. Roberts, who testified about Chance Carland\u2019s actions following the accident. Additional testimony, provided by plaintiff\u2019s employer, Bradley Snider, indicated that plaintiff\u2019s ability to perform his job had been limited since the accident occurred.\nOn 27 April 2007, the jury found Chance Carland had operated the truck owned by Carland Ford Tractor with the express or implied permission of the owner and determined that plaintiff was entitled to $275,000 in damages as a result of the 26 August 2003 accident. Defendants now appeal.\nI.\nDefendants first argue the trial court erred in permitting witnesses to testify regarding defendant Chance Carland\u2019s conduct at the time of the accident. According to defendants, this evidence lacked relevancy, was highly prejudicial, and was inadmissible under Rule 608 of the North Carolina Rules of Evidence. We disagree.\n\u201cEvidence is relevant if it has \u2018any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u2019 \u201d Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citation omitted); N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2007). On appeal, the trial court\u2019s rulings on relevancy are given great deference. Dunn, 162 N.C. App. at 266, 591 S.E.2d at 17. \u201cMoreover, even if the testimony admitted were irrelevant, a new trial would not be granted unless the objecting party was prejudiced thereby.\u201d Ferrell v. Frye, 108 N.C. App. 521, 526, 424, S.E.2d 197, 200, disc. review denied, 333 N.C. 537, 429 S.E.2d 557 (1993). For the judgment to be set aside, the defendant must show \u201cthat a different result would have ensued in the absence of the evidence.\u201d Id.\n\u201cAlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2007). \u201cThe exclusion of evidence under Rule 403 is a matter generally left to the sound dis-' cretion of the trial court.\u201d State v. Alston, 341 N.C. 198, 237, 461 S.E.2d 687, 708 (1995), cert, denied, 516 U.S. 1148, 134 L. Ed. 2d 100 (1996). The trial court\u2019s decision in this matter \u201cwill only be reversed upon a showing that the trial court\u2019s ruling was manifestly unsupported by reason or was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Womble, 343 N.C. 667, 690, 473 S.E.2d 291, 304 (1996), cert, denied, 519 U.S. 1095, 136 L. Ed. 2d 719, reh\u2019g denied, 520 U.S. 1111, 137 L. Ed. 2d 322 (1997).\nHere, defendants argue that the testimony provided by Trooper Goodson and Mr. Roberts, regarding Chance Carland\u2019s behavior after the accident, was irrelevant, unfairly prejudicial, and inadmissible under Rule 608 of the North Carolina Rules of Evidence. Defendants contend that because they stipulated (1) that Chance Carland was negligent and (2) that Chance Carland had permission to use the truck, the only issue before the court was the proper amount of damages. As evidence of Chance Carland\u2019s behavior at the time of the accident bears no relevance as to plaintiff\u2019s damages, defendants argue, this testimony was admitted in error and caused defendants to be prejudiced.\nOn review, we are unpersuaded by defendants\u2019 contentions. Although the record indicates defendants stipulated to negligence and permissive use, defendants\u2019 stipulation was equivocal as to whether Chance Carland was acting as an agent of Carland Ford Tractor at the time of the accident. As our Supreme Court has previously noted, the fact that an individual operated a vehicle with the owner\u2019s knowledge, consent, or authorization is not determinative, as to the owner\u2019s liability. See Passmore v. Smith, 266 N.C. 717, 719, 147 S.E.2d 238, 241 (1966). Under the doctrine of respondeat superior, the owner is liable for the other individual\u2019s negligence \u201conly upon allegation and proof\u2019 that the individual was an agent of the owner and \u201cthat this relationship existed at the time and in respect of the very transaction out of which the injury arose.\u201d Id. (citation omitted). Thus, in the instant case, plaintiff still bore the burden of proving Chance Carland was the agent of Carland Ford Tractor. If Chance were acting as an agent of Carland Ford Tractor, it is possible that he desired to conceal this agency by running away from the scene. Therefore, the testimony of Trooper Goodson and Mr. Roberts regarding Chance\u2019s actions in fleeing the scene was relevant to show Chance\u2019s motivation for leaving the scene as it related to the possibility that he was acting as an agent for Carland Ford Tractor. Even assuming arguendo that the admission of this testimony was error, defendants have failed to meet their burden of showing how the trial result would have differed had the trial court not admitted this evidence. Therefore, we hold the aforementioned testimony was relevant and the trial court did not abuse its discretion by allowing this testimony to be admitted at trial.\nDefendants further argue that this testimony, which concerned prior acts of misconduct by Chance Carland, was inadmissible under Rule 608 of the North Carolina Rules of Evidence. Rule 608 of our Rules of Evidence provides:\nSpecific instances of conduct. \u2014 Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 608(b) (2007). According to defendant, the introduction of testimony concerning Chance Carland\u2019s actions was meant to disparage his credibility. Because Chance did not testify, defendants argue, the issue of his credibility was not before the trial court and such testimony was inadmissible.\nOn review, 'we find defendants\u2019 contention to be without merit. \u201cRule 608(b) governs reference to specific instances of conduct only on cross-examination regarding the credibility of any witness and prohibits proof by extrinsic evidence.\u201d State v. Morgan, 315 N.C. 626, 636-37, 340 S.E.2d 84, 91 (1986). However, under Rule 404(b), \u201cevidence regarding extrinsic acts is not limited to cross-examination and may be proved by extrinsic evidence as well as through cross-examination.\u201d Id. at 637, 340 S.E.2d at 91; see Commentary, N.C. Gen. Stat. \u00a7 8C-1, Rule 608. Rule 404(b) \u201callows the use of extrinsic conduct evidence so long as the evidence is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.\u201d Morgan, 315 N.C. at 637, 340 S.E.2d at 91. As we have previously discussed, the aforementioned testimony was relevant to show Chance\u2019s motivation in leaving the scene of the accident. Therefore, we find defendants\u2019 assignments of error to be without merit.\nn.\nDefendants next argue the trial court erred in permitting plaintiff\u2019s employer, Bradley Snider, to testify concerning plaintiff\u2019s diminished earning capacity. We disagree.\n\u201cIn personal injury actions great latitude is allowed in the introduction of evidence to aid in determining the extent of the damages^]\u201d Smith v. Corsat, 260 N.C. 92, 96, 131 S.E.2d 894, 897 (1963). As a general rule, \u201cany evidence which tends to establish the nature, character and extent of injuries which are the natural and proximate consequences of the tortfeasor\u2019s acts is admissible in such actions, if otherwise competent.\u201d Id. The trial court\u2019s determination regarding the admissibility of evidence \u201c \u2018will not be disturbed on appeal absent a clear showing the court abused its discretion by admitting, or excluding, the contested evidence. A trial court abuses its discretion when its decision lacks any basis in reason.\u2019 \u201d City of Charlotte v. Ertel, 170 N.C. App. 346, 348, 612 S.E.2d 438, 441 (2005) (citations omitted).\nHere, plaintiff proffered testimony from Mr. Snider, a contractor and developer in Buncombe, Henderson, and Rutherford Counties, regarding plaintiff\u2019s employment as a working superintendent. According to Mr. Snider, after being involved in the accident with Chance Carland, plaintiff was no longer able to fulfill all the duties associated with his position. Therefore, Mr. Snider had assigned plaintiff to \u201clight duty\u201d work. Despite plaintiff\u2019s limited ability to perform his job, Mr. Snider did not lower his pay because of his \u201cloyalty\u201d to plaintiff. However, Mr. Snider further testified that due to his limitations, plaintiff would probably receive twenty to thirty percent less than his current wages if he left employment with Mr. Snider and sought work elsewhere in the area. According to defendants, this testimony concerning plaintiff\u2019s limitations should not have been allowed because (1) plaintiff laid an insufficient foundation for such testimony, (2) the testimony was speculative, and (3) the testimony was highly prejudicial.\nAs our Supreme Court has noted, in personal injury actions\nthe jury should estimate the damages on the injured party\u2019s ability to earn money rather than what he actually received, and the amount which plaintiff is capable of earning, and not that which he has actually earned since the injury, is to be taken for the purpose of comparison with his previous earnings as showing the diminution of earning capacity.\nOwens v. Kelly, 240 N.C. 770, 773, 84 S.E.2d 163, 166 (1954) (emphasis added). Further, our courts have acknowledged that \u201csome degree of speculation is inherent in the determination of compensation for lost earning capacity claims.\u201d Curry v. Baker, 130 N.C. App. 182, 193, 502 S.E.2d 667, 676, disc. review denied, 349 N.C. 355, 517 S.E.2d 890 (1998). Therefore, objections to evidence of lost earning capacity on the grounds that such evidence is speculative go to the weight of the evidence rather than its admissibility. Curry, 130 N.C. App. at 194, 502 S.E.2d at 676 (analogizing personal injury claims to wrongful death claims, where our Supreme Court has held:\nThe present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. Therefore, the assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury \u2014 subject, of course, to the discretionary power of the judge to set its verdict aside when, in his opinion, equity and justice so require. The fact that the full extent of the damages must be a matter of some speculation is no ground for refusing all damages.\nBrown v. Moore, 286 N.C. 664, 673, 213 S.E.2d 342, 348-49 (1975) (citations omitted)).\nOn review, we hold defendant has failed to show the trial court\u2019s decision lacked a basis in reason. Our Rules of Evidence provide:\nIf [a] witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2007). In the case at bar, Mr. Snider, a local contractor, testified that he had worked with plaintiff, both before and after his injury. Thus, Mr. Snider was familiar with the duties associated with plaintiff\u2019s position, as well as plaintiff\u2019s current limitations with respect to the fulfillment of these duties. Based on this knowledge, Mr. Snider delivered opinions as to plaintiff\u2019s ability to perform his job and his earning capacity. Although Mr. Snider\u2019s estimate of plaintiff\u2019s earning capacity involved some speculation, his testimony related directly to the question of damages, a fact at issue in the case. Therefore, we hold the trial court did not abuse its discretion in allowing Mr. Snider\u2019s testimony.\nIII.\nDefendants also argue the trial court erred in instructing the jury that it could award damages for plaintiff\u2019s future lost income and earning capacity where the evidence failed to support the instruction. We disagree.\n\u201cIn reviewing the trial court\u2019s decision to give or not give a jury instruction, the preliminary inquiry is whether, in the light most favorable to the proponent, the evidence presented is sufficient to support a reasonable inference of the elements of the claim asserted.\u201d Blum v. Worley, 121 N.C. App. 166, 168, 465 S.E.2d 16, 18 (1995). Should the trial court choose to charge the jury with regard to the claim, the court will consider the charge \u201ccontextually and in its entirety.\u201d Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002). \u201cThe charge will be held to be sufficient if \u2018it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]\u2019 \u201d Hughes v. Webster, 175 N.C. App. 726, 730, 625 S.E.2d 177, 180-81 (quoting Jones v. Development Co., 16 N.C. App. 80, 86-87, 191 S.E.2d 435, 440, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)), disc. review denied, 360 N.C. 533, 633 S.E.2d 816 (2006).\nHere, the trial court was presented with testimony from plaintiff\u2019s employer, Mr. Snider, concerning plaintiff\u2019s job limitations and the amount he would receive from other employers in the area given these limitations. As we have previously discussed, this testimony went to the question of damages, and the trial court did not abuse its discretion by admitting this evidence. In addition, we have noted that evidence of a plaintiff\u2019s earning capacity is often speculative, and that the ultimate question of damages is one for the jury. See Owens, 240 N.C. at 773, 84 S.E.2d 166. After reviewing the record, we hold that the trial court was presented with sufficient evidence to support a jury instruction regarding plaintiff\u2019s future lost income and earning capacity. We further hold that this instruction presents no reasonable cause to believe the jury would be misinformed as to the applicable law. Therefore, defendants\u2019 assignment of error is overruled.\nIV.\nDefendants additionally argue the trial court erred in instructing the jury. Specifically, defendant argues the trial court provided an incorrect instruction regarding the family-purpose doctrine. We agree.\nA jury instruction will be held to be sufficient if \u201c \u2018it presents the law of the case in such [a] manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]\u2019 \u201d Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002) (citation omitted). Where a party has assigned error to a jury instruction, that party\nbears the burden of showing that the jury was misled or that the verdict was affected by [the] instruction. \u201cUnder such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.\u201d\nId. (citations omitted). On review, the charge to the jury will be viewed as a whole. State v. Glynn, 178 N.C. App. 689, 693, 632 S.E.2d 551, 554, appeal dismissed, disc. review denied, 360 N.C. 651, 637 S.E.2d 180 (2006). If an isolated portion of the charge is erroneous, but the charge as a whole is correct, the incorrect portion will not be held prejudicial. Id.\n\u201cAt best the family purpose doctrine is an anomaly in the law.\u201d Smith v. Simpson, 260 N.C. 601, 612, 133 S.E.2d 474, 483 (1963). \u201cUnder [this] doctrine, the owner or person with ultimate control over a vehicle is held liable for the negligent operation of that vehicle by a member of his household.\u201d Byrne v. Bordeaux, 85 N.C. App. 262, 264, 354 S.E.2d 277, 279 (1987). \u201c[It] is essentially a means for establishing liability of responsible parties on a theory of respondeat superior whereby, the responsible party is the principal and the party actively negligent is agent.\u201d Carver v. Carver, 310 N.C. 669, 680, 314 S.E.2d 739, 746 (1984). For a plaintiff to recover under this doctrine, he must show:\n\u201c(1) [T]he operator was a member of the family or household of the owner or person with control and was living in such person\u2019s home; (2) that the vehicle was owned, provided and maintained for the general use, pleasure and convenience of the family; and (3) that the vehicle was being so used with the express or implied consent of the owner or person in control at the time of the accident.\u201d\nLoy v. Martin, 156 N.C. App. 622, 627, 577 S.E.2d 407, 410, disc. review denied, 357 N.C. 251, 582 S.E.2d 274 (2003).\nIn the case sub judice, the trial court noted that the circumstances of the case were \u201cfirst cousin\u201d to those that would give rise to an instruction regarding the family-purpose doctrine. However, the trial court noted that it was not a family-purpose case and provided an altered version of the doctrine over the objection of defense counsel. In his charge to the jury, the trial court informed the jury that in order to find for plaintiff, he must prove by a greater weight of the evidence that: (1) Chance Carland was operating the truck owned by Carland Ford Tractor with the company\u2019s permission at the time of the accident; (2) Carland Ford Tractor provided the vehicle for the use, convenience, or pleasure of Chance Carland while he was employed by the company; and (3) at the time of the accident, Chance Carland was driving the vehicle with the knowledge, approval, and consent of the company. The trial court further informed the jury that it was \u201cnot necessary that [Chance Carland\u2019s] use had been for some purpose directly benefitting the defendant\u2014 the defendant company.\u201d\nOn review, we find the trial court\u2019s instruction regarding the family-purpose doctrine was misleading and represented an incorrect statement of the law. As we have previously noted, plaintiff sought to recover damages from defendant based on the doctrine of respondeat superior. Under this doctrine, for plaintiff to recover he must show, inter alia, that Chance Carland was an agent of Carland Ford Tractor and that he was acting within the scope of his agency at the time of the accident. See Passmore, 266 N.C. at 719, 147 S.E.2d at 241. Although our Supreme Court has noted that the family-purpose doctrine is, in essence, a means of establishing liability under a theory of respondeat superior, our courts have not expanded this doctrine to encompass company-owned vehicles. See Carver, 310 N.C. 680, 314 S.E.2d 746. Further, even in jurisdictions that have extended the family-purpose doctrine to cover company-owned vehicles, the courts commonly focus on whether the vehicle in question was provided for the general use of the family. See Temple v. Chastain, 109 S.E.2d 897, 899 (Ga. Ct. App. 1959); Durso v. A. D. Cozzolino, Inc., 20 A.2d 392, 394 (Conn. 1941); Hexter v. Burgess, 184 S.E. 769, 773 (Ga. Ct. App. 1936). Here, the trial court provided an altered version of the family-purpose doctrine which (1) extended the doctrine to cover company \u2014 owned vehicles, and (2) removed the requirement that the vehicle be provided for family use. Thus, the trial court\u2019s instruction did not align with either our traditional notions of liability under the doctrine of respondeat superior or the exceptional liability provided under the family-purpose doctrine. See Passmore, 266 N.C. at 719, 147 S.E.2d at 241; Loy, 156 N.C. App. at 626-27, 577 S.E.2d at 410. Therefore, we hold the trial court\u2019s instruction constituted a misstatement of the law and likely misled the jury in its determination of defendants\u2019 liability. As such, we award defendants a new trial.\nV.\nDefendants lastly argue the trial court erred in denying Carland Tractor\u2019s motion for a new trial. We agree.\n\u201cGenerally, a motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion.\u201d Kinsey v. Spann, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000). \u201cHowever, where the motion involves a question of law or legal inference, our standard of review is de novo\u201d Id.\nHere, defendants made a motion to the trial court for a new trial on the grounds that improper evidence was admitted at trial and that the trial court provided erroneous instructions to the jury. On appeal, defendant\u2019s argue the trial court erred in denying this motion. In support of this argument, defendants reassert their previous arguments with respect to (1) the testimony of Trooper Goodson and Mr. Roberts; (2) the testimony of Mr. Snider, plaintiff\u2019s employer; and (3) the trial court\u2019s instruction regarding the family-purpose doctrine. Although we have found defendants\u2019 contentions concerning the testimony of the witnesses to be without merit, we hold the trial court erred in its instruction of the jury. As we have previously discussed, the trial court provided an incorrect instruction regarding the family-purpose doctrine which likely misled the jury. Thus, this instruction was erroneous and the court\u2019s failure to grant a new trial constituted a substantial miscarriage of justice. We, therefore, remand for a new trial. See Edwards v. Hardy, 126 N.C. App. 69, 73, 483 S.E.2d 724, 727 (1997).\nNew trial.\nJudges ELMORE and ARROWOOD concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Pulley, Watson, King & Lischer, P.A., by Richard N. Watson, for plaintiff appellee.", "Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Michelle Rippon, for Carland Ford Tractor defendant appellant.", "Young, Morphis, Bach & Taylor, L.L.P., by Paul E. Culpepper, for Chance Mitchell Carland defendant appellant." ], "corrections": "", "head_matter": "REGINALD DUDLEY JACKSON, Plaintiff v. CHANCE MITCHELL CARLAND, Individually, and CARLAND FORD TRACTOR, INC., Defendants\nNo. COA07-1122\n(Filed 2 September 2008)\n1. Evidence\u2014 relevancy \u2014 testimony\u2014conduct at time of accident \u2014 agency\nThe trial court did not abuse its discretion in a negligence case arising out of an automobile accident by permitting witnesses to testify regarding defendant individual\u2019s conduct in fleeing the scene after the accident because: (1) although the record indicated defendants stipulated to negligence and permissive use, defendants\u2019 stipulation was equivocal as to whether defendant individual was acting as an agent of defendant company at the time of the accident; (2) the fact that an individual operated a vehicle with the owner\u2019s knowledge, consent, or authorization is not determinative as to the owner\u2019s liability, and plaintiff still bore the burden of proving defendant individual was the agent of defendant company; (3) the testimony regarding defendant individual fleeing the scene was relevant to show his motivation for leaving the scene as it related to the possibility that he was acting as an agent for the company; (4) even assuming arguendo that the admission of this testimony was error, defendants failed to meet their burden of showing how the trial result would have been different had the trial court not admitted this evidence; (5) even though defendants contend the testimony was inadmissible under N.C.G.S. \u00a7 8C-1, Rule 608, that rule governs reference to specific instances of conduct only on cross-examination regarding the credibility of any witness and prohibits proof by extrinsic evidence; and (6) N.C.G.S. \u00a7 8C-1, Rule 404(b) provides that evidence reg\u00e1rding extrinsic acts is not limited to cross-examination and may be proved by extrinsic evidence as well as through cross-examination.\n2. Evidence\u2014 automobile accident \u2014 diminished earning capacity\nThe trial court did not abuse its discretion in a negligence case arising out of an automobile accident by permitting plaintiff\u2019s employer to testify concerning plaintiff\u2019s diminished earning capacity given his limitations and the amount he would receive from other employers in the area given these limitations because: (1) in personal injury actions, great latitude is allowed in the introduction of evidence to aid in determining the extent of the damages; (2) as a general rule, any evidence which tends to establish the nature, character and extent of injuries which are the natural and proximate consequences of the tortfeasor\u2019s acts is admissible in such actions, if otherwise competent; (3) our courts have acknowledged that some degree of speculation is inherent in the determination of compensation for lost earning capacity claims; (4) objections to evidence of lost earning capacity on the ground that such evidence is speculative go to the weight of the evidence rather than its admissibility; (5) defendant failed to show the trial court\u2019s decision lacked a basis in reason; and (6) although the employer\u2019s estimate of plaintiff\u2019s earning capacity involved some speculation, his testimony related directly to the question of damages which was a fact at issue in the case.\n3. Negligence\u2014 automobile accident \u2014 instruction\u2014lost income \u2014 earning capacity\nThe trial court 'did not err in a negligence case arising out of an automobile accident by instructing the jury that it could award damages for plaintiff\u2019s future lost income and earning capacity where the evidence allegedly failed to support the instruction because: (1) the testimony from plaintiff\u2019s employer concerning plaintiff\u2019s job limitations and the amount he would receive from other employers in the area given these limitations went to the question of damages; (2) evidence of a plaintiff\u2019s earning capacity is often speculative, and the ultimate question of damages is one for the jury; and (3) the trial court was presented with sufficient evidence to support a jury instruction regarding plaintiff\u2019s future lost income and earning capacity.\n4. Automobiles\u2014 improper instruction \u2014 family purpose doctrine \u2014 new trial\nThe trial court erred in a negligence case arising out of an automobile accident by incorrectly instructing the jury regarding the family purpose doctrine, and defendant is entitled to a new trial because: (1) plaintiff sought to recover damages from defendant based on the doctrine of respondeat superior; (2) although our Supreme Court has noted that the family purpose doctrine is, in essence, a means of establishing liability under a theory of respondeat superior, our courts have not expanded this doctrine to encompass company-owned vehicles; (3) even in jurisdictions that have extended the family purpose doctrine to cover company-owned vehicles, the courts commonly focus on whether the vehicle in question was provided for the general use of the family; (4) the trial court provided an altered version of the family purpose doctrine which extended the doctrine to cover company-owned vehicles and removed the requirement that the vehicle be provided for family use, thus failing to align with either traditional notions of liability under the doctrine of respondeat superior or the exceptional liability provided under the family purpose doctrine; and (5) the instruction constituted a misstatement of the law and likely misled the jury in its determination of defendant\u2019s liability.\n5. Trials\u2014 motion for new trial \u2014 erroneous instruction \u2014 substantial miscarriage of justice\nThe trial court erred in a negligence case arising out of an automobile accident by denying defendant employer\u2019s motion for a new trial on the ground that improper evidence was admitted at trial and that the trial court provided erroneous instructions to the jury because: (1) although defendants\u2019 contentions concerning the testimony of the witnesses was found to be without merit, the trial court did err in its instruction to the jury regarding the family purpose doctrine which likely misled the jury; and (2) the failure to grant a new trial constituted a substantial miscarriage of justice.\nAppeal by defendants from judgment entered 27 April 2007 by Judge James U. Downs in Henderson County Superior Court. Heard in the Court of Appeals 20 February 2008.\nPulley, Watson, King & Lischer, P.A., by Richard N. Watson, for plaintiff appellee.\nVan Winkle, Buck, Wall, Starnes & Davis, P.A., by Michelle Rippon, for Carland Ford Tractor defendant appellant.\nYoung, Morphis, Bach & Taylor, L.L.P., by Paul E. Culpepper, for Chance Mitchell Carland defendant appellant." }, "file_name": "0432-01", "first_page_order": 460, "last_page_order": 472 }