dissenting.
Charge on Federal Taxation of Award
I disagree with my brethren on the trial court’s action in refusing defendants’ charge that the award of damages was not subject to federal taxation. I readily admit, as I must, that under the decision in McFerrin, 156 Tex. 69, 291 S.W.2d 931, 945, the refusal was proper. But, in this era of increasingly large verdicts, the rationale of McFerrin is difficult to understand and even more difficult to support. The theory underlying the tort reparations system is that the injured party should be awarded compensation which would place him in the financial position he would have occupied but for the negligence of the opposite party. In arriving at this figure, our courts consistently permit the reception of expert opinion evidence as to the effect of future inflation upon the earning capacity of the injured party, the rate of interest in the future, and other factors having a bearing upon the award.
I submit that it is unrealistic in this day- and time when every employed person is acutely conscious of the tax consequences of every economic fact of life. As stated by Kliesing’s counsel:
“The universal application of the federal income tax pervades the lives and consciousness of all citizens who occupy the jury box. ... In order to dispel any misapprehension and to avoid any confusion that may affect jurors attempting to award damages, a simple and uncomplicated instruction that any award made to the plaintiff is not subject to federal income taxation is mandatory.”
The Ninth Circuit accepted a similar argument. See Burlington Northern, Inc. v. Boxberger, 529 F.2d 284, 295-297 (9th Cir. 1975). See also Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1251 (3rd Cir.1971), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir.1974).
In the years following the McFerrin pronouncement on the taxation/instruction, McFerrin has been examined and reexamined by our Supreme Court and its basic holding (as to Tex.Rev.Civ.Stat.Ann. art. 6701d, § 86) has been repudiated.*
I respectfully suggest that it would be appropriate for our Supreme Court to reexamine and to change its holding with reference to the instruction now under discussion. I do so in the form of a dissent so as to confer jurisdiction to determine such question under the provisions of Tex.Rev. Civ.Stat.Ann. art. 1728, subdiv. 1 (1962). Regardless of other errors which have been mentioned in the foregoing opinion, I would *823find reversible error in the refusal of the requested charge on federal taxation of the damage award.
Purchaser’s Duty in Using Product
In preparing the opinion for the majority, I concluded that there were five balancing factors to be utilized in the determination of whether the design is or is not defective. Only four of such factors are found in the majority opinion for the reason that one did not meet with the approval of a majority of the Court. Such factor, as it was formulated by me read: “The user’s ability to avoid danger by the exercise of ordinary care in the use of the product.”
It was removed because the majority was of the opinion that this injected an element of contributory negligence into the case.
I disagree. The omitted element closely follows and was based, at least in part, upon Dean Wade’s sixth element (see majority opinion, footnote 9, quoting from 19 SW.L.J. at 17). Dean Wade’s element No. 6: “the avoidability of injury by care in use of the product (including the effect of instructions or warnings).”
I submit that a “balancing test” which deliberately and intentionally excuses the user of a product from the exercise of ordinary care while using a product is deficient; indeed, my concept is more favorable to the user than that of Dean Wade’s quoted earlier.
I am of the opinion that the balancing test should require the use of ordinary care by the purchaser while using the product.
See, e. g., Christy v. Blades, 448 S.W.2d 107 (Tex.1969) and Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973).