ATLANTIC COAST LINE RAILROAD COMPANY, a corporation authorized to do business in Florida, Appellant. v. Ernest GANEY, Appellee, 125 So. 2d 576

HORTON, Chief Judge. This is an appeal from a final judgment entered pursuant to a jury verdict for the plaintiff in an action for personal injury. The action was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. Ganey, an employee of the defendant railroad company, while acting as a switch-man in defendant’s freight yard at Jacksonville, suffered a traumatic amputation of the left leg. The city of Jacksonville is located in Duval County and the suit was instituted in Dade County.

The defendant contended that the Dade County circuit court should have refused to accept jurisdiction under the equitable doctrine of forum non conveniens. Accordingly, the defendant moved to dismiss; the trial judge denied the motion, indicating that he was without authority to entertain it. During the course of the trial, the plaintiff testified that he had been convicted of aggravated assault and that he knew this to be a felony. The trial court refused to allow defendant’s counsel to question the plaintiff on the length of sentence to show that the plaintiff had been sentenced to a year in prison.

Further, the trial court refused to allow defendant’s counsel to show that the plaintiff would be fired by the railroad upon affirmance of the conviction and sentence. It was the defendant’s position below that this testimony was material and had bearing upon the future earning capacity of the plaintiff.

In addition, the trial court sustained the plaintiff’s counsel’s objection to proffered testimony “by this witness that on the night in question he and Ganey rode to work and that on the way down Ganey was discussing with him the fact that he was discouraged by the fact that he expected soon to have to start serving his sentence and that he didn’t know what was going to happen to his wife and family; that he was going to lose everything he had, including his job, and that he was in a despondent frame of mind.” All of the issues were presented to the jury which returned a verdict for the plaintiff in the amount of $100,000.

Defendant’s motion for new trial was denied and judgment was entered upon the verdict. The appellant has presented seven points in its' brief' upon which it bases its argument for reversal. By its first point, appellant a-rgues that the- trial judge erred in .refusing to consider a motion to change jurisdiction of the cause under the equitable doctrine of forum non conveniens. Secondly, it is .contended that the court erred, in excluding testimony offered to show .that the plaintiff had been sentenced to a year' in prison and that he would be fired upon affirmance of this conviction and sentence.

Thirdly, it is contended that the court, erred in refusing to charge the jury on the definition of a felony. The appellant’s fourth contention is that the court erred in excluding testimony relating to the plaintiff’s state of mind on the night of-the accident; fifth; that the court erred in giving a certain charge .to the jury; sixth;, .that the trial court erred in denying the motion for néw trial; and seventh, that the verdict’ is excessive.

Clearly, under the Federal Employers’ Liability Act, the plaintiff has a choice of placing venue where the defendant resides, where the cause of action arose or where 'the defendant is doing business at the time the action is commenced. However, since the enactment of § 1404(

a) Title 28 U.S.C.A., a defendant in Federal Court may obtain a transfer of the action under the principle of forum non con-veniens embodied therein. See Ex parte Collet, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207. The appellant here has conceded that venue was proper in this case and our research has not disclosed, nor has the appellant informed us of any Florida statute granting the power to transfer or dismiss a cause of action for considerations involving trial convenience.

The Supreme Court of the, United States has indicated that in FELA cases brought in state courts, as is the instant case, the defendant may invoke the doctrine only if the state generally applies the doctrine as part of the local law. • In Greyhound Corporation v. Rosart, Fla.App. 1960, 124 So.2d 708, 712, this court was called upon to determine the applicability of the doctrine of forum non con-veniens in- a similar transitory action in which the defendant sought to effect a change in venue.

In holding the doctrine inapplicable, this court said: “In Florida, the election of venue is with the plaintiff and although it may be more convenient to the defendant and possibly to the plaintiff. that the action be prosecuted in another county or circuit, nevertheless, if the election is one which the plaintiff has properly exercised under the statute, [Chapter 46, Fla.Stat., F.S.A.] then the election still remains his and not one which can be dictated by the defendant. Doonan v. Poole, Fla.App.1959, 114 So.2d 504. See Santa Rosa County v. Trobuck, 77 Fla. 86, 80 So. 748; Enfinger v.

Baxley, Fla.1957, 96 So.2d 538; Peterson v. Kirk, Fla.App.1958, 103 So.2d 656. To hold otherwise would be to nullify the venue statute which gives the plaintiff the right to file his action in a particular place under certain specified conditions.” Concerning the second point raised, it must first be observed that a judgment will not be set aside on the ground of improper rejection of evidence unless it appears that the error complained of has resulted in a miscarriage of justice or that the error' injuriously affected the substantial right of the complaining party. See 13 Fla.Jur., Evidence, § 111.

The admission or rejection of testimony is primarily within the discretion of the trial judge. Huffman v. Peek, Fla.App.1958, 102 So.2d 641. The appellant here contends that the exclusion of' the proffered testimony precluded it from showing that plaintiff’s future earnings had been materially affected.

Although we are convinced that the trial judge was within the limits of his discretion in refusing to allow the defendant to inquire further into the criminal conviction and the sentence imposed thereto, because of the prejudicial nature of such testimony, nevertheless, conceding the evidence should have been admitted, we conclude that the appellant has failed to demonstrate the prejudice, if any, occasioned by the exclusion.

In Florida, the measure of future loss to be compensated by damages is the loss of the capacity to earn, that is, the permanent impairment of the ability to earn money, and not the actual loss of earnings. See, Renuart Lumber Yard v. Levine, Fla.1950, 49 So.2d 97; Mullis v. City of Miami, Fla.1952, 60 So.2d 174; Smith v. Tantlinger, Fla.App.1958, 102 So.2d 840; 9 Fla.Jur., Damages, § 52. Some jurisdictions base the award on the injured plaintiff’s actual loss of wages. See Allied Van Lines v. Parsons, 80 Ariz. 85, 293 P.2d 430.

The Supreme Court of this state has allowed damages for loss of earning capacity in the absence of any actual earning. See Florida Greyhound Lines, Inc. v. Jones, Fla.1952, 60 So.2d 396. Certainly this is true in computing damages for permanent injuries to children and housewives who have no history of wage earning. However, the proof must stand appellate scrutiny as to its sufficiency in giving the jury data from which to estimate in money the loss of earning capacity.

Along with the mortality table, the jury may consider the injured person’s age, health, habits, occupation, surroundings and earning, both before and after the injury, in assessing damages for permanent personal injury. See Loftin v. Wilson, Fla.1953, 67 So.2d 185, and cases collected in 9 Fla.Jur., Damages, §§ 53 and 54. All of these items are appropriate, though less than all may suffice.

Plaving considered all the elements of proof presented to the jury, as well as recognizing that the extent and hence the value of future earning power depends on probabilities and cannot often be reduced to certainty, we conclude that there was sufficient proof upon which to base the award. We have carefully considered the remaining points raised by the appellant and find them to be without merit. Accordingly, the judgment appealed is' affirmed. PEARSON and CARROLL, CHAS., JJ., concur. . 45 U.S.O.A. § 56. . State of Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. . Mead v.

State, Fla.1956, 86 So.2d 773. . Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96 So. 297; Atlantic K. & N. R. Co. v. Gardner, 122 Ga. 82, 49 S.E. 818; Rosenkranz v. Lindell R. Co., 108 Mo. 9, 18 S.W. 890. . Florida Greyhound Lines, Inc. v. Jones, supra. . McCormick, Damages, § 86, p. 309.