Paul J. Greco v. Seaboard Coast Line Railroad Company, a Virginia Corporation

468 F.2d 822, 1972 U.S. App. LEXIS 7226

Opinions

JOHN R. BROWN, Chief Judge,’with whom DYER and SIMPSON, Circuit Judges join,

dissenting:

I dissent from the denial of rehearing en banc. The practice of keeping the jury in the dark on the nontaxability of awards for lost income and future earning capacity should be reconsidered by the full Court. The jury’s ignorance as to the effect of taxation produces verdicts which do not reflect realities of the financial injuries which a plaintiff, including this plaintiff, has endured.¹

I do not mean to imply that plaintiff’s verdicts in general — except insofar as they cause receipt of income which would have otherwise been diverted into the general coffers — are too large, nor that the plaintiff here was overcompensated for the other elements of damage. What I do protest is the court being a participant in an undertaking the rules of which compel it to remain silent, when silence almost necessarily becomes deceit. Indeed, it would be more characteristic of the law’s quest for truth to ordain a substantive rule that the jury be openly and honestly instructed to award gross wages lost, but under a rule which supposes recovery of net losses it is most unseemly for a court of law to refuse to hear, see or speak the truth.

We should unmuzzle ourselves from our prior cases which make a trial judge and us a part of a charade. That would also put us in tune with the times ² — an awareness by the very young to the aged that federal income taxes are not only a certain fact of life, but they are, and most assuredly will be big, if not bigger.

1 . The jury below apparently increased plaintiffs award in order to compensate for taxation. Greco v. Seaboard Coast Line Railroad Co., 5 Cir., 1972, 464 F.2d 496.

2 . Indeed, it would put us in tune with the holding's of a number of other courts. The excellent opinion of Judge Aldisert for the Third Circuit in Domeracki v. Humble Oil & Refining Co., 3 Cir., 1971, 443 F.2d 1245 contains a catalog of authorities and learned commentary. We should heed his statement that “what we know as men we should not ignore as judges”, an observation I have voiced on several occasions, see, e. g., Hamer v. Campbell, 5 Cir., 1966, 358 F.2d 215, 220 and Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1, 10, 12 (en banc).