APPEAL from the Appellate Court, First District, heard in that
court on appeal from the Circuit Court of Cook County; the Hon.
HERBERT PASCHEN, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 25, 1972.
In an action brought under the Federal Employer's Liability Act (45 U.S.C. § 51 et seq.), a jury returned a verdict of $750,000 for the plaintiff, Thomas Raines, against the defendant, New York Central Railroad Company. The defendant had acknowledged its liability and trial was had to resolve only the question of damages. On appeal the Appellate Court for the First District reversed and remanded for a new trial (129 Ill. App.2d 294). We granted the petition of the plaintiff for leave to appeal.
On May 18, 1967, the plaintiff, who was 28 years of age, was severely injured while coupling air hoses between a locomotive and a box car in a yard of the defendant. At the time the plaintiff had been employed by the defendant for but nine days. The injuries necessitated the amputation of both the plaintiff's legs at points close to the hips, and he was continuously hospitalized from May 18, 1967, to August 18, 1967.
The defendant contended in the appellate court that the verdict was excessive and had resulted from jury passion and prejudice. It claimed that the trial court had erred in failing to instruct the jury that the plaintiff's award was not subject to income tax; that the trial court should have granted a mistrial or interrogated the jurors relative to a television program about personal injury lawyers which was shown during the trial and prior to the jury's retirement; that the introduction of evidence relative to the plaintiff's pension rights under the Railroad Retirement Act had he been employed until the vesting of such rights was improper; and that testimony of the likelihood of a continuation of inflationary trends in the economy was erroneously admitted. The appellate court held that the trial court had committed error in allowing testimony relating to a continuation of inflationary trends and when it permitted the plaintiff to introduce evidence of retirement benefits he would have received had he continued to be employed by the defendant until retirement. The appellate court rejected the defendant's contention that the jury should have been instructed that the award was not subject to income tax and the court said that inasmuch as remandment for a new trial was to be ordered it would be unnecessary to consider the argument regarding the television program.
After we granted leave to appeal the plaintiff was killed, it would appear, in an automobile accident, and by order of this court Jo Ann Raines, as special administrator, was substituted as appellant and will hereafter be designated as plaintiff.
The same arguments the parties advanced in the appellate court are presented to us.
Considering the defendant's first contention, we judge that the trial court correctly refused an instruction that any award in favor of the plaintiff would not be subject to income tax. In Hall v. Chicago and Northwestern Ry. Co., 5 Ill.2d 135, at 151-152, this court observed: "It is a general principle of law that in the trial of a lawsuit the status of the parties is immaterial. Thus, what the plaintiff does with an award, or how the defendant acquires the money with which to pay the award, is of no concern to the court or jury. Similarly, whether the plaintiff has to pay a tax on the award is a matter that concerns only the plaintiff and the government. The tortfeasor has no interest in such question. And if the jury were to mitigate the damages of the plaintiff by reason of the income tax exemption accorded him, then the very Congressional intent of the income tax law to give an injured party a tax benefit would be nullified."
We are not persuaded by the defendant's second argument that the trial court should have interrogated the jury regarding the television program at the time it was reported by defense counsel to the court. The program, which was a network show, concerned trial lawyers. Six attorneys participated in the program, one of whom was a nationally known attorney specializing in personal injury matters. The discussants spoke of criminal trials and also contingent fees, influence of insurance companies on juries, and the personal injury lawyer told of large awards he had obtained. There was no reference to the plaintiff's case.
The following day the defendant's attorney advised the court of the program and requested a mistrial. The motion was denied and a motion was then made that the jurors be polled to determine the program's influence, if any, which motion was also denied. However, after the jury had returned its verdict the trial court inquired of the jurors as to whether any of them had seen the program. Three had seen the program but they stated it had not been discussed in the jury room. There is nothing to suggest the three jurors were influenced by their viewing the show.
We judge that the trial court correctly refused to poll the jurors as to whether they had seen the program at the time the request was first made by the defendant's attorney. To have done so would have only apprised those of the program who had been unaware of it and stimulated curiosity. After the verdict the court did poll the jurors and ascertained from the three who had seen it that it had not been discussed in the jury room. Considering the general character of the program and its remoteness from the case on trial, the trial court correctly considered that there had not been prejudicial influence. The motion for a mistrial was addressed to the trial court's discretion and the court did not err in denying it.
In the cases offered by the defendant to support its argument, the prejudicial character of the matters involved seemed clear. In West Chicago St. R.R. Co. v. Grenell, 90 Ill. App. 30, 45, a newspaper article stated that the jury " * * * on the former trial had been bribed," and that " * * * the case [was] to be given another chance for `justice'." In Trohey v. Chicago City Ry. Co., 168 Ill. App. 1, two jurors brought into the jury room a newspaper which contained an article suggesting that defendant had engaged in jury tampering. In Day v. Thomson, 305 Ill. App. 29, the article reported prejudicial remarks by a trial judge regarding the good faith of defendant's attorneys. The three criminal cases cited, People v. Hryciuk, 5 Ill.2d 176; People v. Malmenato, 14 Ill.2d 52; People v. Cox, 74 Ill. App.2d 342, involved prejudicial comments about the accused.
The contention that the trial court erred in admitting evidence of pension rights the plaintiff would have enjoyed under the Railroad Retirement Act had he continued to work for the defendant is not well founded. To illustrate these benefits, an employee of the Railroad Retirement Board, Emil J. Oravec, testified that an employee, after ten years of railroad service, would become eligible for retirement benefits. Oravec testified that at the time of trial the maximum retirement benefits payable to a retired railroad employee with thirty years of service was $247 per month. He said that according to official projections, on the basis of average earnings of $650 per month, and reckoning from the time of trial, a railroad employee who would retire after thirty-five years would receive $502 per month plus a $70 supplement. The supplement, however, was at the time of trial being provided on a five-year trial basis and its continuation was uncertain.
The appellate court held, erroneously, we consider, that this evidence was too speculative to have been admitted. The authorities offered by the defendant to support the appellate court's view did not involve the issue we consider. In Eichel v. New York Central R.R. Co., 375 U.S. 253, 11 L.Ed.2d 307, 84 S.Ct. 316, which was relied on by the appellate court, the Supreme Court held that the trial court properly excluded evidence that the plaintiff was receiving a disability payment of $190 per month. The decision does not have force here, however, for the evidence had been offered by the defendant to show that the plaintiff's failure to return to work was due to malingering. The other cases advanced by the defendant (Sinovich v. Erie R.R. Co. (3rd cir. 1956), 230 F.2d 658; Hetrick v. The Reading Company (D.C.N.J. 1941), 39 F. Supp. 22; Riley v. West Virginia Northern R. Co. (1948), 132 W. Va. 208, 51 S.E.2d 119; Missouri Pacific R.R. Co. v. Wellingham (Tex.Civ.App. 1961), 348 S.W.2d 764; Gilroy v. Erie-Lackawanna R.R. Co. (S.D.N.Y. 1968), 279 F. Supp. 139; and New York, New Haven & Hartford R. Co. v. Leary (1st cir. 1953), 204 F.2d 461) are to the effect that a defendant may not mitigate damages by introducing evidence of the plaintiff's pension rights. They are not relevant here.
Raines offered the evidence of his lost pension rights in proof of the injury inflicted on his future earning capacity. The trial judge instructed the jury that plaintiff was entitled to the "present cash value of earnings reasonably certain to be lost in the future." The defendant made no objection to the instruction and does not quarrel with the measure of damages proposition the instruction embodies. The plaintiff argues that the pension rights he would have acquired under the Railroad Retirement Act are a part of the remuneration for continued employment with the railroad, that these benefits would have vested after ten years employment, and that he was forever deprived of them. Neither party cites a Federal Employer Liability Act case where the propriety of introducing lost pension rights as an element of damages was decided, but we note that in Boston and Maine R.R. v. Talbert (1st cir. 1966), 360 F.2d 286, the court in rejecting the defendant's contention that damages awarded to plaintiff were excessive, noted that: "[A]t age sixty-five he would have retired with a pension of $287.00 a month for the rest of his life and could have supplemented this amount by other employment." (360 F.2d 286, at 291.) In other actions for personal injuries, courts have held that the introduction of lost pension rights is a proper element of damage. The Court of Appeals for the second circuit in Cunningham v. Rederiet Vindeggen (2d cir. 1964), 333 F.2d 308, applying Healy v. Rennert (1961), 9 N.Y.2d 202, 213 N.Y.S. 44, 173 N.E.2d 777, held that evidence of lost pension benefits was admissible. In Groat v. Walkup Drayage and Warehouse Co. (1936), 14 Cal.App.2d 350, 58 P.2d 200, the court, in approving the admission of evidence of lost pension rights, said: "Although, at the time of the accident the accrual of respondent's right to a pension was contingent upon his further service for four years, and the amount that he would receive depended upon his subsequent length of life, yet he then had a present existing right to fulfill such ...