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11/30/89 John R. Onion, v. Chicago and Illinois

November 30, 1989

JOHN R. ONION, PLAINTIFF-APPELLEE

v.

CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, DEFENDANT-APPELLANT

THE UNITED STATES SUPREME COURT DEALT WITH THE ISSUE OF WHETHER IT WAS ERROR TO REFUSE TO INSTRUCT A JURY ON THE NONTAXABILITY OF THE JURY'S AWARD IN NORFOLK & WESTERN RY. CO

v.

LIEPELT (1980),


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

547 N.E.2d 721, 191 Ill. App. 3d 318, 138 Ill. Dec. 554 1989.IL.1848

Appeal from the Circuit Court of Mason County; the Hon. Fred W. Reither, Judge, presiding.

APPELLATE Judges:

JUSTICE STEIGMANN delivered the opinion of the court. McCULLOUGH, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STEIGMANN

Defendant, Chicago and Illinois Midland Railway Company, appeals (1) the trial court's decision to give a jury instruction on pain and suffering, and (2) the trial court's refusal of an instruction on the nontaxability of the jury award.

Plaintiff, John R. Onion, a railroad employee, brought a personal injury action against his employer, the defendant, pursuant to the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1982)). Over defendant's objection the trial court decided not to instruct the jury that any damages awarded to plaintiff would not be subject to income tax. Defendant similarly objected to the court's decision to instruct the jury that it may consider plaintiff's future pain and suffering. Defendant claims that no evidence of plaintiff's pain and suffering was presented at trial.

The trial court's decision to give or to refuse a jury instruction must be affirmed if the court's decision was correct on any ground. A correct decision must be affirmed even if based on an incorrect reason. Kingston v. Turner (1987), 115 Ill. 2d 445, 455-56, 505 N.E.2d 320, 324; Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6, 14, 329 N.E.2d 228, 231.

"Although the law is perfectly clear, it is entirely possible that the members of the jury may assume that a plaintiff's recovery in a case of this kind will be subject to federal taxation, and that the award should be increased substantially in order to be sure that the injured party is fully compensated. The Missouri Supreme Court expressed the opinion that 'it is reasonable to assume the average juror would believe [that its verdict will] be subject to such taxes.' Dempsey v. Thompson, 363 Mo. 339, 346, 251 S.W.2d 42, 45 (1952)." Liepelt, 444 U.S. at 496-97, 62 L. Ed. 2d at 695, 100 S. Ct. at 759.

The Court further held:

"t was error to refuse the requested instruction in this case. That instruction was brief and could be easily understood. It would not complicate the trial by making additional qualifying or supplemental instructions necessary. It would not be prejudicial to either party, but would merely eliminate an area of doubt or speculation that might have an improper impact on the computation of the amount of damages." Liepelt, 444 U.S. at 498, 62 L. Ed. 2d at 696, 100 S. Ct. at 759-60.

Liepelt was brought pursuant to the FELA and concerned a wrongful death claim. However, Liepelt is not limited to wrongful death cases. See Oltersdorf v. Chesapeake & Ohio R.R. Co. (1980), 83 Ill. App. 3d 457, 404 N.E.2d 320, where the holding in Liepelt was applied to an FELA personal injury action. Both Liepelt and Oltersdorf held that the trial court's failure to give this instruction warranted reversal. Oltersdorf, 83 Ill. App. 3d at 464, 404 N.E.2d at 325.

Although FELA actions may be brought in either State or Federal court, Federal law controls as to instructions on damages. (Liepelt, 444 U.S. at 493, 62 L. Ed. 2d at 693, 100 S. Ct. at 757.) However, cases based solely on Illinois law are not entitled to a Liepelt instruction. Klawonn v. Mitchell (1985), 105 Ill. 2d 450, 456, 475 N.E.2d 857, 860.

Since the instant case is based on Federal law, the Liepelt instruction should have been given to the jury. The trial court's failure to do so was reversible error.

The second issue on appeal concerns the trial court's decision to instruct the jury as to the plaintiff's future pain and suffering. "Some evidence" on this point from either an expert or a layperson warrants the giving of a jury instruction. (Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 81, 390 N.E.2d 1384, 1388; McNealy v. Illinois Central R.R. Co. (1963), 43 Ill. App. 2d 460, ...


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