O'Byrne v. St. Louis Southwestern Ry. Co.

• Decision Date: 18 December 1980
• Docket Number: No. 79-2626,79-2626
• Citation: 632 F.2d 1285
• Parties: Michael O'BYRNE, Plaintiff-Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY CO., Defendant-Third Party Plaintiff-Appellant, v. UNION TANK CAR CO., Third Party Defendant-Appellee. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1285

632 F.2d 1285

Michael O'BYRNE, Plaintiff-Appellant, v. ST. LOUIS SOUTHWESTERN RAILWAY CO., Defendant-Third Party Plaintiff-Appellant, v. UNION TANK CAR CO., Third Party Defendant-Appellee.

No. 79-2626.

United States Court of Appeals, Fifth Circuit.

Unit A

Dec. 18, 1980.

Mike A. Hatchell, Tyler, Tex., for plaintiff-appellant.

Jones, Jones & Baldwin, Doyle Curry, Marshall, Tex., for Michael O'byrne.

Herbert Boyland, Mark McMahon, Longview, Tex., for Union Tank Car Co.

Appeal from the United States District Court for the Eastern District of Texas.

Before INGRAHAM, GEE and TATE, Circuit Judges.

PER CURIAM:

Cases decided here and above since trial of this cause doom plaintiff-appellee's attempt to preserve a substantial recovery in this Federal Employer's liability action. We remand for a new trial on damages alone.

Appellee O'Byrne was injured when he fell from a tank car while working as a switchman for appellant railway. He brought an FELA action, and the railway joined Union Tank Car Company as a third party defendant.

At the conclusion of the trial, the district court directed a verdict against the railroad on liability and submitted the remaining issues to the jury. The court denied the following instruction requested by the railroad:

If your verdict is in favor of Plaintiff, you will not increase or decrease the amount of your verdict by reason of Federal Income Taxes, since the amount awarded to Plaintiff, if any, is not taxable income to Plaintiff within the meaning of the tax laws.

The court also refused to instruct the jury that it should reduce any amount awarded for future pain and suffering to present value. The jury assessed O'Byrne's damages as $470,000 against the railroad only. Contribution and indemnity against Union Tank Car were denied. Final judgment was entered accordingly. The railroad's motion for new trial, based on excessive damages, was denied, and the railroad timely appealed.

No points of error are brought forward by the railway regarding the findings of liability on its part or the want thereof on the part of Union Tank Car. We therefore affirm these without comment.

The railway does complain of the court's instruction to the jury about reduction to present value of various items of damage, mainly that of future pain and suffering. For over twenty years, our rule has been that while awards for future earnings and medical expenses should be reduced to present value, damages for future pain and suffering should not. Texas & Pacific Ry. v. Buckles, 232 F.2d 257, 264 (5th Cir.), cert. denied, 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498 (1956). As to this point, no more need be said. The point urging excessiveness of damages need not be considered, since we reverse for a new trial on that aspect of the case.

Appellant's major point, and that which requires reversal and a new trial on the damages issues, asserts error in the refusal by the trial court of the instruction on their character as non-taxable return of capital.

Until very recently the rule in FELA cases in this circuit was that no instruction was to be given to the jury informing it of the nontaxability of personal injury recoveries under that statute. That rule has been changed from on high. In Norfolk & Western Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), decided subsequent to the trial of this lawsuit, the Supreme Court held the trial judge's refusal in an FELA case to charge the jury on the nontaxable nature of such a...