Highshew v. Kushto

• Decision Date: 29 May 1956
• Docket Number: No. 18691,18691
• Citation: 235 Ind. 505,134 N.E.2d 555
• Parties: Gertrude C. HIGHSHEW, Appellant, v. James E. KUSHTO, Appellee.
• Court: Indiana Supreme Court

Page 555

134 N.E.2d 555

235 Ind. 505

Gertrude C. HIGHSHEW, Appellant, v. James E. KUSHTO, Appellee.

No. 18691.

Supreme Court of Indiana.

May 29, 1956.

Milton A. Johnson, South Bend, Stevens & Wampler, George Stevens, Plymouth, Hammerschmidt & Johnson, South Bend, of counsel, for appellant.

Marshall F. Kiser, Plymouth, John W. Montgomery, South Bend, for appellee.

ARTERBURN, Judge.

This comes to us on a petition to transfer from the Appellate Court. We have examined the petition and it is our opinion that the transfer should be denied. However, in the opinion of the Appellate Court is found the following language :

'The refusal of the court to give appellant's tendered instruction number 27 presents a question of first impression in Indiana. If given it would have informed the jury that in the event they found for the plaintiff any award made to him would not be subject to federal income taxes. Such an instruction has been approved by the courts of Missouri, Dempsey v. Thompson, 1952, 363 Mo. 339, 251 S.W.2d 42, and we can find no reason for the disapproval of the one here involved. It is obvious, however, that a refusal to give the instruction could only result in an excessive verdict due to the jury's desire to make the appellee whole after taxes. The verdict in this case is not excessive and we are constrained to conclude that any error involved in the refusal to give the instruction in question was harmless.' (Our italics.)

That portion of the language italicized above in our opinion should be disapproved. In a recent case, Hall v. Chicago & N. W. Ry. Co., 1955, 5 Ill.2d 135, on page 152, 125 N.E.2d 77, on page 86, the Illinois Supreme Court, had this to say with reference to an instruction such as that referred to above:

'We are of the opinion that the incident of taxation is not a proper factor for a jury's consideration, imparted either by oral argument or written instruction. It introduces an extraneous subject, giving rise to conjecture and speculation.'

In a recent Ohio case, Maus v. New York, C. & St. L. R. Co., 1955, Ohio App., 128 N.E.2d 166, 167, had this to say:

'To permit an instruction, as requester herein, there should be an inquiry as to the amount allowed for actual loss of wages plus probable future loss of earnings, for, as to those matters, the injured person, if he had not been injured and had he continued to work, would have paid income taxes on all of his earnings. On the amount awarded for pain, suffering and mental...