St. Johns River Terminal Co. v. Vaden, H--56
| Decision Date | 25 August 1966 |
| Docket Number | No. H--56,H--56 |
| Citation | 190 So.2d 40 |
| Court | Florida District Court of Appeals |
| Parties | ST. JOHNS RIVER TERMINAL COMPANY, Inc., a corporation, Appellant, v. Don G. VADEN, Appellee. |
Marion R. Shepard, of Mathews, Osborne & Ehrlich, Jacksonville, for appellant.
S. Perry Penland, and Hazard & Fernandez, Jacksonville, for appellee.
This appeal by defendant is from a final judgment rendered upon a jury verdict in favor of plaintiff.
On June 17, 1965, appellee, while working for appellant, was injured in an accident. His foot was crushed and subsequently amputated a few inches above his ankle. At the time of his injury his earnings averaged $500.00 a month.
Appellee instituted this action for damages under the Federal Employers' Liability Act. At the trial appellant requested the following instruction be given the jury, which request was refused:
'You are instructed that any award made to the plaintiff as damages in this case, if any award is made, is not subject to federal or state income taxes and you should not consider such taxes in fixing the amount of any award made to the plaintiff, if any you make.'
The jury returned a verdict for plaintiff in the sum of $90,500.00. Motion for new trial was denied and this appeal followed. Although appellant's assignments of error contained other points, these points were not argued in the brief and are therefore considered abandoned under Rule 3.7(i), F.A.R., 31 F.S.A., leaving as the sole issue on appeal the court's refusal to give the requested instruction set out above.
In the case of Poirier v. Shireman, 1 the trial court, at the request of defendant, instructed the jury in substantially the same language as that contained in the requested instruction by defendant in the case sub judice. On appeal the propriety of the instruction was challenged. After reviewing the decisions rendered by courts of other states, the Second District Court of Appeal, speaking through Judge Shannon, appears to have adhered to that line of decisions which holds that the giving of an instruction of this kind is discretionary with the trial court. In Poirier the action of the trial court in giving the instruction was held proper, and the judgment appealed was accordingly affirmed.
In the case of Stager v. Florida East Coast Railway Company, 2 the trial court, at defendant's request, instructed the jury with regard to federal and state income taxes in a manner similar to that followed in the Poirier case, supra. The giving of the instruction was assigned as error on appeal. The Third District Court, speaking through Chief Judge Barkdull, held that the giving of the instruction was within the discretion of the trial judge, and that under the circumstances of that case did not constitute error. In Stager, the court relied upon the Second District Court's decision in Poirier as authority for the conclusion reached.
In the case sub judice it appears that during the conference on instructions the trial judge indicated a willingness to instruct the jury on the matter of federal and state income taxes as requested by defendant if the latter would agree that the jury should also be instructed that out of any award made plaintiff, he would be required to pay an attorney's fee and the nonallowable costs of the litigation. Defendant's counsel appears to have objected to the court including in its instruction any reference to the payment by plaintiff of attorney's fees and costs out of any award made him, so defendant's requested instruction was denied.
It appears that the decided majority of ...
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...S. Ry. v. Rayburn, 213 Va. 812, 195 S.E.2d 860 (1973); Missouri-K-T- R.R. v. Miller, 486 P.2d 630 (Okl.1971); St. Johns River Terminal Co. v. Vaden, 190 So.2d 40 (Fla.Ct.App.1966); Bracy v. Great N. Ry., 136 Mont. 65, 343 P.2d 848 (1959); Louisville & N. R.R. v. Mattingly, 318 S.W.2d 844 (K......
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Downs v. U.S.
...erred in reducing the damage awards by the amount of decedents' future federal income tax liability, citing St. Johns River Terminal Co. v. Vaden, 190 So.2d 40 (Fla.App.1966). The Vaden Court concluded that a trial judge should not instruct the jury that its damage award in a wrongful death......
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