make a vessel unseaworthy. I charged the jury accordingly.
(5) Defendant asserts that the jury's findings that the failure to provide the ship's boom and to properly maintain the upper chain of the pipe railing evidence the jury's misunderstanding of the definition of "proximate causation". This conclusion is grounded on defendant's flat assertion that as a matter of law these events were too remote to be considered substantial factors in causing harm to plaintiff. Defendant states that the jury's confusion was probably due to the failure to reiterate the definition of proximate cause at the time the jury was charged on how to answer the interrogatories.
There was sufficient evidence that these breaches of duty were substantial factors in causing plaintiff's injuries. I cannot assume that the jury misunderstood an admittedly proper instruction or that its memory was so short that the charge should have been repeated.
(6) A verdict awarding damages for future loss of income in a personal injury action is not subject to federal income taxes. 26 U.S.C. § 104. Defendant argues that the jury should have been told that the award to plaintiff would not be subject to federal income taxes.
I see no reason why the defendant should gain a reduction in the verdict because of a tax advantage Congress has granted to the injured plaintiff. The majority rule, which has been consistently adhered to in this district and in other courts in this circuit, is that it is not reversible error to refuse to give an instruction on the income tax effect of an award. Chicago & N.W. Ry. Co. v. Curl, 178 F.2d 497 (8th Cir. 1949); Culley v. Pennsylvania R. Co., 244 F. Supp. 710 (D. Del. 1965); Altemus v. Pennsylvania R. Co., 32 F.R.D. 7 (D. Del. 1963). See LeRoy v. Sabena Belgian World Airlines, 344 F.2d 266 (2d Cir.), cert. denied, 382 U.S. 878, 86 S. Ct. 161, 15 L. Ed. 2d 119 (1965); Girard Trust Corn Exchange Bank v. Philadelphia Transportation Co., 410 Pa. 530, 190 A. 2d 293 (1963); Annot., 63 A.L.R. 2d 1378 (1959).
(7) Defendant's final argument revolves around an unusual incident which took place after the verdict had been recorded and the jury dismissed. At that time, the courtroom clerk handed to me two sheets of yellow scratch paper.
One piece of paper contained a notation of the amount awarded by the jury to the plaintiff and the signatures of each of the jurors beneath it. The second sheet contained some computations (the exact nature of which has now happily slipped my memory), which apparently had something to do with the jury's calculations in regard to damages. I made a comment to counsel to the effect that I believed that these computations indicated that the jury failed to follow the court's instructions in regard to damages, (N.T. pp. 390, 398) but I did not permit counsel to see the second sheet of paper.
Counsel for defendant contends that the papers should have been given to him to enable him to impeach the jury's verdict, and that the court's refusal to grant this request is ground for a new trial.
Even if I were to assume that the papers evidence the jury's confusion on calculating damages, the verdict was still proper. Whatever occurred in the jury room "inheres" in the recorded verdict. Farmers Co-op. Elevator Ass'n Non-Stock, etc. v. Strand, 382 F.2d 224, 230 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S. Ct. 589, 19 L. Ed. 2d 659 (1967), reh. denied, 390 U.S. 913, 88 S. Ct. 815, 19 L. Ed. 2d 887 (1968). Cf. Finn v. Carnegie-Illinois Steel Corp., 68 F. Supp. 423 (W.D. Pa. 1946). It was not proper even for the court to examine the content of the papers. By doing so, in effect, the court intruded upon the jury's deliberative process. It would have been highly improper to permit counsel to examine the papers and inquire into the means by which the jury arrived at its proper verdict. Cf. Chicago, R.I. & P.R. Co. v. Speth, 404 F.2d 291 (8th Cir. 1968). The situation here is somewhat analogous to those cases in which the jury adds some commentary to its verdict. It has been consistently held that such gratis comments are to be disregarded and the recorded verdict finalized. See, e.g., Hong Sai Chee v. Long Island R. Co., 328 F.2d 711 (2d Cir. 1964); Cleary v. Indiana Beach, Inc., 275 F.2d 543 (7th Cir.), cert. denied, 364 U.S. 825, 81 S. Ct. 62, 5 L. Ed. 2d 53 (1960).
Since none of the defendant's contentions have any merit, an order will issue denying defendant's motions for judgment notwithstanding the verdict or in the alternative for a new trial.