IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CT-00634-SCT

GREYHOUND LINES, INC.

v.

GERALD SUTTON, ADMINISTRATOR OF THE ESTATE OF NICHOLAS MAY,

DECEASED; GERALD SUTTON, ADMINISTRATOR OF THE ESTATE OF SUMONE

MAY, DECEASED; DONNIE CAUGHMAN, ADMINISTRATOR OF THE ESTATE OF

MARCUS MAY, DECEASED; ESTATE OF CHERYL MAY; NANCY BONANNO; PAUL

COTTER; AND ROBERT RILEY

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 04/18/1997

TRIAL JUDGE: HON. J. LARRY BUFFINGTON

COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: LUTHER T. MUNFORD

REGINALD ARTHUR GRAY III

REBECCA HAWKINS

CHRISTOPHER R. GREEN

ATTORNEYS FOR APPELLEES: KEITH M. ALEXANDER

F. DOUGLAS MONTAGUE, III

CRYMES G. PITTMAN

DAVID SHOEMAKE

C. VICTOR WELSH, III

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: AFFIRMED IN PART; REVERSED IN PART- 08/24/2000

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 9/15/2000

EN BANC.

MILLS, JUSTICE, FOR THE COURT:

¶1. This matter is a wrongful death action which arises out of a collision between an automobile driven by

Cheryl May and a Greyhound bus. May and her three children were killed in the collision. The

administrators of the respective estates of the children (the Administrators) filed suit against Greyhound

Lines, Inc. and the estate of Cheryl May. Greyhound and May's estate then filed cross-claims against one

another for the property damage to the bus and for the wrongful death of May, respectively. Three of the

passengers in the bus eventually joined in the suit. The matter was tried in Simpson County Chancery Court,
and the chancellor found May 90 percent at fault and Greyhound 10 percent at fault. A judgment was

entered in the amount of $1.1 million for each of May's children. A judgment for the passengers was

entered in the amount of $680,000 for Nancy Bonanno, $285,000 for Paul Cotter, and $50,000 for

Robert Riley.

¶2. The Court of Appeals affirmed the awards of the passengers, but it reversed and remanded the

damages awards of the children, finding, inter alia, that the future incomes of the deceased children should

be based on "some type of average income for persons in the community. . . ." Greyhound Lines, Inc. v.

Sutton, No. 97-CA-00634-COA, slip op. ¶ 33 (Miss. Ct. App. 1999). Greyhound and the

Administrators filed petitions for the writs of certiorari which we granted. We affirmed the decision of the

Court of Appeals as to the liability of Greyhound, but we reverse its decision regarding the damage awards

for the deaths of the children and reinstate the chancellor's damage awards.

FACTS

¶3. On the night of January 22, 1995, Cheryl May and her three children, Marcus, eight, Sumone, three,

and Nicholas, one, were diving on Old Hebron Road in Jefferson Davis County. May ran a stop sign and

collided with a greyhound bus traveling north on State Highway 13. May and her three children were killed

instantly, and the driver of the bus, as well as some of the passengers, were injured.

¶4. A civil action was subsequently filed against Greyhound and May's estate by Gerald Sutton, the father

and statutory beneficiary of Nicholas and Sumone, as well as the Administrator of their estates, and Donnie

Caughman, Administrator of the estate of Marcus. Greyhound then filed a cross-claim against May's estate

for property damage to its bus, and May's estate in turn filed a cross-claim against Greyhound for the

wrongful death of May. Three of the passengers on the bus at the time of the collision, Nancy Bonanno,

Paul Cotter, and Robert Riley, each intervened and filed their own suits against May's estate and

Greyhound. The trial of all of the actions commenced before the Chancery Court of Simpson County on

February 10, 1997, and concluded on February 14, 1997.

¶5. In his opinion and order entered on March 6, 1997 the chancellor found that Greyhound was 10

percent at fault for the accident and May was 90 percent at fault for the accident. The Chancellor awarded

$1.1 million each for the deaths of Marcus, Nicholas, and Sumone, and further awarded $680,000 to

Bonanno, $285,000 to Riley, and $50,000 to Cotter.

¶6. Greyhound appealed, and the Administrators cross-appealed. The Court of Appeals affirmed as to the

liability of Greyhound, as well as the awards to the bus passengers, but reversed and remanded the damage

awards for the deaths of the children. Greyhound and the Administrators each filed petitions for writs of

certiorari, both of which were granted.

ANALYSIS

¶7. We begin with our often cited and familiar standard of review.

[T]his Court reviews questions of law de novo. Bank of Mississippi v. Hollingsworth, 609 So.2d

422, 424 (Miss.1992).

. . . . . . . . . . . . . .
This Court will not disturb those findings [of a chancellor] unless manifestly wrong, clearly erroneous,

or an erroneous legal standard was applied. Reversal is permitted only in those cases where the

chancellor was manifestly in error in his finding of fact and manifestly abused his discretion. Where the

factual findings of the chancellor are supported by substantial credible evidence, they are insulated

from disturbance on appellate review.

Brooks v. Brooks, 652 So.2d 1113, 1117 (Miss. 1995) (quoting Dillon v. Dillon, 498 So.2d 328, 330

(Miss.1986)).

1. Greyhound's liability

¶8. Greyhound argues that the Court of Appeals erred in affirming the chancellor's decision regarding

liability. Specifically Greyhound argues that the Court of Appeals misconstrued Miss. Code Ann. § 63-3-

505 (1996) to require every driver on a through road to slow down as the driver approaches an

intersection, even where the crossing road has a stop sign, because, as Greyhound asserts, the only duty of

a driver on a through road is to react reasonably when the driver knows or should know that the driver on

the crossing road will run the stop sign. Greyhound further argues that the opinion of the Court of Appeals is

in conflict with Jobron v. Whatley, 250 Miss. 792, 168 So. 2d 279, 284 (1964), and Vines v.

Windham, 606 So. 2d 128, 131 (Miss. 1992).

¶9. In response, the Administrators argue that the factual findings of a chancellor are not to be reversed

where they are supported by substantial credible evidence in the record, and because they were in this

particular case, the Court of Appeals properly affirmed the decision of the chancellor as to liability.

Specifically, they argue that the chancellor's finding that the bus driver had a warning of several seconds

before the impact is supported by the testimony of Greyhound's own witnesses and passengers. The

Administrators further assert that Jobron, provides the reasonable interpretation to Miss. Code Ann. § 63-

3-505 which Greyhound argues it should be given.(1)

¶10. On this issue, the Court of Appeals found:

We also hold the chancellor applied the proper legal standard in regard to the duty to keep a proper

lookout. In Jobron v. Whatley, 250 Miss. 792, 168 So. 2d 279, 284 (1964), our supreme court

delineated the proper standard:

Insofar as the appellee's having the right of way, or the right to assume that the driver of the other car

would stop his car before entering the intersection, is concerned, this Court has repeatedly stated

what the rule is, namely: That the motorist's right to assume that the driver of a vehicle proceeding

toward an intersection will obey the law of the road, which requires him to stop before entering the

intersection, exists only until he knows or in the exercise of ordinary care should know otherwise.

Jobron is very similar to the case at bar as it involved a car having the right of way which was hit by a

car which ran a stop sign. Id. at 280. A passenger in the car that was hit filed suit against both the

driver who ran the stop sign and the driver of the car she was in for failing to keep a proper lookout

and failing to properly control the car after seeing the other car approaching. Id. The trial court in

Jobron granted a peremptory instruction to the driver of the car the passenger was in because the

court felt the passenger failed to make an issue of negligence for the jury. Id. Based on the evidence

presented, our supreme court held "[c]ertainly it would be a question for the jury to determine,
whether or not the appellee was guilty of negligence in failing to use her brakes and slow her vehicle

down so that, when it appeared Dr. White was not going to obey the stop sign and bring his vehicle to

a stop, she would have had her vehicle under control and would have been able to avoid the

collision." Id. at 282.

Turning to the case at bar, the bus driver had both the duty to slow down as he approached the

intersection and a duty to brake when and if it became evident May was not going to stop for the

intersection. The chancellor applied the correct legal standards. Therefore, we cannot disturb his

opinion for any deficiencies with regard to the law. However, the chancellor also made factual findings

that the bus driver breached both these duties. To uphold the chancellor's opinion both of these

findings of fact must be supported with substantial credible evidence.

Greyhound Lines, slip op. ¶¶ 14-16.

¶11. After examining the evidence found in the record, the Court of Appeals went on to hold:

Substantial credible evidence supports the chancellor's finding that the driver breached his duty to

slow down. First, the driver himself testified he did not start to brake until after impact. Also as stated

above, evidence supports the findings that the driver was in fact speeding at 56 mph. Although there

was no sign warning the driver of the intersection, this does not relieve him of his duty to slow down at

that point a reasonable person would know an intersection was approaching. [Passenger] Weaver

testified that he saw the lights of May's vehicle five seconds before impact. At that moment, the driver

should be in the process of slowing down and keeping a proper lookout of the approaching car.

Substantial credible evidence supports the chancellor's findings that the driver was not keeping a

proper lookout. Under Jobron, a driver has no duty to take defensive action until such time as a

reasonable person would know a car approaching an intersection will not stop. Id. From the

testimony presented, the chancellor could conclude that a driver keeping a proper lookout and paying

attention would have known that May's car was not going to stop at some time before impact. The

evidence shows that Weaver saw May's car and saw that it was not going to stop. Weaver was so

sure it would not stop that he yelled out. This testimony comes from a passenger sitting half way down

the bus and to the left of the driver and point of impact. Weaver had time to see May's vehicle,

decipher that it would not stop, and had time to yell out. [Passenger] Bryant, on the other hand,

testified that he never even saw May's vehicle until impact. The reasonable inference is that a driver in

the front of the bus and on the side of impact who was keeping a proper lookout would know or

should have known that May would not stop sometime before Weaver's yell. Since the driver failed to

see May's vehicle, and therefore, could not have possibly known it would not stop, the driver

breached his duty to keep a proper lookout.

Greyhound Lines, slip op. ¶¶ 18-19.

¶12. Miss. Code Ann. § 63-3-505 (1996) provides in relevant part:

The driver or operator of any motor vehicle must decrease speed when approaching and crossing an

intersection, when approaching and going around a curve, when approaching a hill crest, when

traveling upon any narrow or winding roadway, or when special hazard exists with respect to

pedestrians or other traffic.
We find that the Court of Appeals was correct in affirming the chancellor's application of the statute to the

present case. In Fielder v. Magnolia Beverage Co., 757 So.2d 925 (Miss. 1999), the appellants brought

an action for injuries they sustained when a delivery truck allegedly crossed the center line of the road into

their lane of traffic and forced them off the road while they were negotiating a curve. Id. at 927-28. The

jury found in favor of the defendant. Id. On appeal, one of the questions before the Court was whether the

trial court erred in giving an instruction that stated that Fielder had a duty to decrease her speed when

approaching and negotiating the curve. Id. at 935.

¶13. There the Court stated:

In regards to instruction D-14, the Fielders offer this Court no argument other than their objection

made at trial. At trial, the Fielders objected on grounds that "[i]t's not every curve in this road

that a person is required to reduce the speed." The trial court overruled the objection. MBC

[Magnolia Beverage Company] contends that the trial court properly gave instruction D-14, because

Miss. Code Ann. § 63-3-505 states, in pertinent part, that "[t]he driver or operator of any motor

vehicle must decrease speed when ... approaching and going around a curve." Miss. Code Ann. § 63-

3-505 (1996).

In Vise v. Vise, 363 So.2d 548 (Miss.1978), this Court approved an instruction requiring the

driver of a motor vehicle to decrease speed when approaching and going around a curve. Id.

at 551. Therefore, according to statutory mandate and case precedent, we hold that the trial

court properly granted instruction D-14. Read as a whole and in context, instructions D-13 and

D-14 fairly announce the law and create no injustice; thus, no reversible error is found.

Fielder, 757 So.2d at 936 (emphasis added). We therefore find Greyhound's argument on this issue is

without merit.

¶14. Greyhound next argues that the Court of Appeals, as well as the chancellor, relied on short time

estimates to support the judgment. Greyhound argues that such estimates have previously been held to be

inherently unreliable, and therefore the Court of Appeals erred when it found that the estimates provided

substantial evidence to support the factual findings of the chancellor. Greyhound further argues that the

decision of the Court of Appeals is in conflict with Yazoo & MVR Co. v. Lamensdorf, 180 Miss. 426,

178 So. 80 (1938). In response, the Administrators argue that the Court of Appeals did not rely on the

testimony of any single witness in finding that Greyhound's driver had a several second warning within which

to stop the bus, but rather based its holding on the testimony of all of the witnesses who were passengers in

the bus at the time of the collision.

¶15. In Lamensdorf, the Court was faced with a challenge to the weight of the evidence where a single

witness testified, contrary to all of the other evidence, that the decedent's vehicle had been stalled on a train

track for some forty-five seconds and that the train which struck the vehicle in which the decedent was

riding had ample time to stop. 180 Miss. at 449, 178 So. at 80. There, the Court found:

That estimate by Brock cannot be reconciled with the surrounding facts as shown by all the other

witnesses; and weighing it in the scales of all ordinary human experience and observation, as it is our

duty to do, it must be pronounced as incredible as a reasonable probability. It is possible, as almost

anything is possible, that the length of time did intervene as Brock estimates, but we repeat that as a

probability it is incredible; and we suppose it is not now necessary to more than briefly refer to what
we have so often heretofore said, to wit, that to present a possibility, rather than a believable

probability, is not a sufficient basis for a verdict and judgment.

Id.

¶16. The Court went on to say:

The scintilla of evidence rule has been discarded in nearly all jurisdictions, and is not recognized in this

state; but verdicts must be based upon substantial evidence and that evidence must be reasonably

believable. Whatever a jury here or there might chance to believe, we must require that the evidence

upon which they act must be within state-wide legal standards, and one of these, as said, is that the

evidence must be substantial and must be reasonably believable. Common experience and

observation among all sensible men, who are impartial and without interest upon the issue, can lead to

but one reasonable or substantial conclusion in respect to estimates of short periods of time, especially

when that estimate, formed in a period of excitement, is in terms of seconds. So it is that all must

agree with what the law books say on that subject: "Estimates of the duration of short period of time

into which much experience is crowded are notoriously inexact and are apt to be excessive, especially

if the mind was in a state of anxiety or expectation, and a witness who assumes to measure time with

accuracy under such circumstances discredits himself." 23 C. J. p. 37, and cases there cited. See,

also, 2 Moore on Facts, p. 992 et seq. In this case, for instance, Brock estimated the time of the train

from the bridge to the crossing at 15 seconds, while his wife said it was 3 seconds, and neither of

them had it right.

If we were to accept the estimate of 45 seconds by Brock as the duration of time that deceased was

stalled on the track and discard all the other evidence, and allow this single estimate as sufficient in

dependable substance to support a verdict, it would be to say that we will accept as substantially and

controllingly dependable that which is declared by the authorities to be notoriously inexact and

unreliable, and, moreover, would convict this train crew as bent upon homicide, and the deceased

upon suicide, or at least that he was wholly indifferent to the most compelling motive or instinct which,

under all circumstances and in every eventuality, incites men to action in their own behalf, namely, the

instinct of self-preservation.

180 Miss. at 450-51, 178 So.at 80-81.

¶17. In Lamensdorf this Court held that testimony based on estimates of short periods of time could not be

the sole basis for a verdict where the testimony was substantially contradicted by the testimony of the other

witnesses and defied logic. In the present case, two passengers testified that they saw the car at least five

seconds before the impact. One of the passengers, Jackie Wayne Weaver, testified that he yelled out

simultaneously with the impact, and that portion of his testimony was corroborated by the testimony of

another passenger, Robert Riley. We therefore find that Greyhound's argument on this issue is without

merit, and we affirm the decision of the Court of Appeals as to the liability of Greyhound.

2. Damage awards of the children

¶18. The Administrators argue that the Court of Appeals erred in reversing the damage awards of the

children. Specifically, they argue that the Court of Appeals erred when it rejected the testimony of all of the

economists and held that the damages should be based on "some type of average income for persons of the
community in which the decedents lived." See Greyhound Lines, slip op. ¶ 33. Greyhound agrees that the

Court of Appeals erred in holding that on remand the damages should be based on some sort of average

income of the community in which the children lived.

¶19. On this issue, the Court of Appeals found:

An award of damages by a chancellor is a finding of fact. As stated time and again, "we will not

disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal

standard was applied." Matter of Estate of Chambers, 711 So. 2d 878, 880-81 (Miss. 1998)

(citations omitted). . . .

. . . .

To calculate the present cash value of the life expectancy of the deceased one need merely to take the

projected annual future income of the deceased multiplied by their work life expectancy, discount it to

present cash value and deduct a percentage for the deceased's personal living expenses. Sheffield v.

Sheffield, 405 So. 2d 1314, 1318, (Miss. 1981); see also Jones v. Shaffer, 573 So. 2d 740, 742

(Miss. 1990) ("In computing a person's lost net cash value, a personal consumption factor must be

taken into account."). The plaintiffs' economic expert, Carroll David Channell, fixed Marcus's

economic loss at $613,436, Nicholas's economic loss at $589,697, and Sumone's economic loss at

$334,074. The defense's economic expert, Kenneth J. Boudreaux, testified that the present net cash

value of the three children was for Marcus $1,753.04, for Nicholas $1,602.67, and for Sumone

$520.30.

Channell based his figures on the projected work life expectancy for each child that he attained from a

February 1986 bulletin of the U.S. Department of Labor, entitled Effects of Race and Education

Bulletin 2254; on the average earnings of a high school graduate, including the employer paid portion

of social security adjusted for taxes, taken from the U.S. Bureau of Census CD Rom, entitled Income

and Poverty 1993, with a real wage growth of .87% per year; and a personal maintenance allowance

of 30% based on a study by economist Earl Cheit. Channell also discounted his sums to present

value. The discrepancies between the children's economic losses were based on the discount factors

used as each child would enter the workforce at different years, and the fact that a female child will

earn less money and work less time over her lifetime.

Boudreaux based his figures on the estimate [sic] life expectancies of each of the children using the

U.S. government vital statistics tables and the work life tables of the U.S. Government Bureau of

Labor Statistics; an earning amount of slightly over $8,000 a year, based on Cheryl May's income,

with an allowance of a 5% increase a year; and a consumption rate of 94% from the U.S. statistical

abstract of the United States. Boudreaux also discounted his sums to present value.

We should start by saying that the calculation of the present net cash value of the life expectancy of a

child is speculative at best for a child has no work history upon which to draw conclusions. The

paramount question to be answered is what future annual income should be assigned to a child with no

work history? Channell used an average income figure for a high school graduate, while Boudreaux

used Cheryl May's yearly income of $8,000.

The chancellor in his opinion assumed that both economists based their figures on the earning
background of the [sic] Cheryl May. This was simply not true, and it was manifest error for the

chancellor to state so in his opinion. Furthermore, it is manifest error to tie the children's projected

future income to that of their mother. Boudreaux himself testified that he had no opinion about what

the proper base income was for any of his calculations, and he simply used Cheryl May's income

figure provided to him. We see no reason to ground the future income of the children based solely on

the income of the mother. We can only guess if Greyhound would still want to tie the children's future

income to that of their mother if at the time of her death she was making six figures. We hold that the

base income of the children should be established with some type of average income for persons of

the community in which the decedents lived.

Greyhound Lines, Inc., slip op. ¶¶ 27-33.

¶20. The conclusion by the Court of Appeals that the income for the children should be based on some sort

of average income for persons of the community in which they lived, as far as we can find, has no basis in

our law. Additionally, such a method is just as speculative as basing the recovery on the earning history of

the parents. It is both unfair and prejudicial to ground the projected future income of a deceased child on

either basis. Both methods result in potentially disparate recoveries for children from affluent communities or

with affluent parents, as opposed to children from less affluent areas or with less affluent parents.

¶21. Who is to say that a child from the most impoverished part of the state or with extremely poor parents

has less of a future earnings potential than a child from the wealthiest part of the state or with wealthy

parents? Today's society is much more mobile than in the past. Additionally, there are many more

educational and job-training opportunities available for children as a whole today. We must not assume that

individuals forever remain shackled by the bounds of community or class. The law loves certainty and

economy of effort, but the law also respects individual aptitudes and differences.

¶22. Therefore, we hold that in cases brought for the wrongful death of a child where there is no past

income upon which to base a calculation of projected future income, there is a rebuttable presumption that

the deceased child's income would have been the equivalent of the national average as set forth by the

United States Department of Labor. This presumption will give both parties in civil actions a reasonable

benchmark to follow in assessing damages. Either party may rebut the presumption by presenting relevant

credible evidence to the finder of fact. Such evidence might include, but is certainly not limited to, testimony

regarding the child's age, life expectancy, precocity, mental and physical health, intellectual development,

and relevant family circumstances. This evidence will allow the litigants to tailor their proof to the aptitudes

and talents of the individual's life being measured.

¶23. We find this standard to be equitable for all the parties because it allows the fact finder to take into

account the unique circumstances of each individual person in accordance with current Mississippi case law.

"Each case must depend upon its own facts." New Orleans & Northeastern R.R. v. Thornton, 191

So.2d 547, 551 (Miss. 1966) (citing Illinois Cent. R.R. v. Ragan, 252 Miss. 335, 173 So.2d 433

(1965)).

¶24. The Administrators also argue that the Court of Appeals erred in holding that it was error for the

chancellor to use a consumption rate which was based on hypothetical spouses and children which would

require support. They argue that it was not improper for their economist to base his opinions on

hypothetical spouses and children because this Court in Jones v. Shaffer, 573 So. 2d 740 (Miss. 1990),

reversed a damage award for funeral expenses only where the economist in that case had based his
calculations on a hypothetical spouse. Greyhound, on the other hand, argues that the Court of Appeals was

correct in holding that hypothetical beneficiaries could not be used to reduce the decedents' personal

consumption factor.

¶25. On this issue, the Court of Appeals found:

The chancellor next used the personal consumption rate of 30% as advocated by Channell. Channell

testified that this consumption rate was based on the projection that the children would marry and

have children, or that they would have partners who would share common expenses. Channell

testified that the consumption rate is lowered because with children one would consume less on

oneself, and if married one would consume less than if one were single. Channell further testified that

for a forty-five year old man who had never married and lived alone, he would use a 60%

consumption rate. On cross-examination, Channell testified as follows:

Well, case specific, no. For young children you have an issue that -- the question is -- the economic

question is, what position are they going to be in over the remainder of their lives? Are they going to

be married? Are they going to live with someone? Are they going to have a roommate? Are they

going to -- do they have sisters or other relatives that are going to survive them? If that's the case,

then a thirty percent consumption allowance is certainly appropriate because the income they earn

could be available to the support of family members, could be available to the support of parents in

their old age. There are numerous things that are allocations that can be made from that income.

When [you] go up to -- you try to use personal savings rates of three percent and a consumption rate

of ninety-seven percent, then certainly that's out of line in my view. That's not personal consumption.

In fact, I would argue that the maintenance allowance should consist of that amount of monies

necessary to sustain a meaningful life style. In other words, food, clothes, shelter, transportation.

Channell's testimony was that the children would be spending money on hypothetical future spouses

and children, therefore their consumption rate is lowered to account for the money that would have

been spent on support of the hypothetical future spouses and children. It is an attempt to allow

beneficiaries to recover money that the deceased would have spent on them during the deceased's

lifetime by lowering the deceased's personal consumption rate. In essence, to allow beneficiaries to

recover everything they would have received if the deceased had lived. We hold that it was manifest

error for the chancellor to use a consumption rate which is based on a hypothetical prospect that the

children would eventually have a spouse and have children of their own, both of which require

support.

. . . .

Mississippi has never adopted the idea of lowering a consumption rate or increasing a saving rate to

specifically make up for money spent on statutory beneficiaries during the deceased's lifetime. We

decline to offer any opinion as to whether Mississippi recognizes such a calculation in determining the

present net cash value of the life expectancy of the deceased. However, even if Mississippi

recognized such, it would not be proper in this instance as the children were not supporting anyone at

the time of their deaths.

Greyhound Lines slip op. ¶¶ 34-37.
¶26. Contrary to the opinion of the Court of Appeals, we have indeed recognized personal consumption

factors. In Jones v. Shaffer, 573 So. 2d 740 (Miss. 1990), a wrongful death action was brought for the

death of an unmarried twenty-two year old who only left his five brothers and three sisters surviving him.

We found that the trial court erred in not granting a new trial when the jury awarded damages for funeral

expenses only, and in so doing, we stated:

Dr. Paul Oliver, an expert in the field of economics, testified for the plaintiff. He was the only such

expert to testify in the case. According to Dr. Oliver, the average work life expectancy of a 22 year

old male person is 41 years. In computing a person's lost net cash value, a personal consumption

factor must be taken into account. In his direct testimony, he indicated that the decedent's personal

maintenance consumption allowance would be twenty-six per cent, which is for a two person family

and the highest percentage shown by the tables of the Department of Labor. Using that rate, Dr.

Oliver testified for the last full year the decedent worked, he earned $9,900, which computed the

present value of the decedent's lost income at $171,000.00. This did not take into account any taxes

that might be paid during the decedent's life, had he lived.

On cross examination by Mr. Sanders, attorney for the defendant, Kim Shaffer, Dr. Oliver was asked

to compute the decedent's lost income using 40% as the deceased personal consumption rate and Dr.

Oliver arrived at the decedent's lost net income as $101,142.00. On further cross examination by the

attorney for Jeffries' Trucking, Dr. Oliver was asked to assume that the decedent's personal

consumption rate was 67% and Dr. Oliver arrived at the decedent's lost net income at $70,495.00. It

is incredible that the verdict ignored and did not respond favorably to this element of

damages.

Id. at 742 (emphasis added).

¶27. Today we hold that the consumption rate is another factor which may be argued by the parties to the

finder of fact in support of increasing or decreasing the presumption that the deceased child's income would

have been equivalent to the national average. The credibility and weight of such testimony as are to be

determined solely by the finder of fact. As the Court of Appeals observed in the present case, Channell

based his testimony and calculations on the average earnings of a high school graduate and a personal

maintenance allowance of 30% based on a study by economist Earl Cheit. Greyhound Lines, slip op. ¶

30. The chancellor chose to give credence to Channell's testimony, and rendered a verdict accordingly. This

aspect of the chancellor's decision was supported by substantial evidence, and as a result, we cannot say

that the chancellor erred. We therefore reverse the decision of the Court of Appeals and reinstate the

damage awards for the death of the children.

CONCLUSION

¶28. We conclude that the chancellor did not err in finding Greyhound 10 percent at fault in this collision,

and therefore, we affirm the decision of the Court of Appeals as to the liability of Greyhound. As to the

damage awards for the death of the children, we hold that in cases brought for the wrongful death of a child

where there is no past income upon which to base a calculation of projected future income, there is a

rebuttable presumption that the deceased child's income would have been the equivalent of the national

average as set forth by the United States Department of Labor. However, that presumption may be

rebutted by presenting other relevant credible evidence as will aid the finder of fact in making its

determination. We further hold that the consumption rate is one such factor that may be taken into account
by the finder of fact. Finally, we find that in the present case the chancellor's damage awards were

supported by substantial evidence, and we therefore reverse the decision of the Court of Appeals and

reinstate the damage awards for the deaths of the children.

¶29. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND

REVERSED IN PART.

PRATHER, C.J., PITTMAN, P.J., McRAE AND WALLER, JJ., CONCUR. COBB, J.,

CONCURS IN PART. SMITH, J., CONCURS IN PART AND DISSENTS IN PART

WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, P.J., AND COBB, J.

DIAZ, J., NOT PARTICIPATING.

SMITH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶30. I agree with the majority opinion insofar as it affirms the decision of the Court of Appeals as to the

liability of Greyhound Lines, Inc. However, I disagree with the majority's conclusion that the chancellor

correctly utilized evidence of a consumption rate based upon hypothetical spouses and children which

would require the support of the deceased. Therefore, I respectfully dissent.

¶31. In my view, the majority erroneously relies upon Jones v. Shaffer, 573 So. 2d 740 (Miss. 1990), as

authority for the correct treatment of net cash value. In calculating the damage award for the deceased

children, the chancellor utilized evidence of a consumption rate based upon hypothetical spouses and

children which would require the support of the deceased. The Court of Appeals held that it was error to

base the children's personal consumption factors on a hypothetical prospect that the children would

eventually have a spouse and children of their own, both of which would require support. The Court of

Appeals stated, "Mississippi has never adopted the idea of lowering a consumption rate or increasing a

saving rate to specifically make up for money spent on statutory beneficiaries during the deceased's lifetime.

. . . However, even if Mississippi recognized such, it would not be proper in this instance as the children

were not supporting anyone at the time of their deaths." Greyhound Lines, Inc. v. Sutton, No. 97-CA00637-SCT, slip. op.¶ 37

¶32. The majority states, "Contrary to the opinion of the Court of Appeals, we have indeed recognized

personal consumption factors," citing Shaffer. Majority Op. at *16. The majority's treatment of Shaffer,

however, is misguided. The question is not whether this Court has ever recognized personal consumption

factors. We undisputably have. In Shaffer, this Court stated, "In computing a person's lost net cash value, a

personal consumption factor must be taken into account." Shaffer, 573 So. 2d at 742. Neither Greyhound

nor Sutton argues, and the Court of Appeals did not hold, that this Court should not recognize a personal

consumption factor. The question is whether we have ever allowed the personal consumption factor to be

decreased based on hypothetical spouses and children. Shaffer does not speak to this question.

¶33. In Shaffer, the deceased, a twenty-two year old male, was unmarried at the time of his death and had

no children. He was survived by five brothers and three sisters. The trial court instructed the jury on the

following elements of damages: (1) funeral expenses of the deceased; (2) net cash value, life expectancy of

the deceased; (3) pain, suffering and mental anguish; and (4) loss of companionship to the siblings. The jury,

however, returned a verdict for the plaintiff only in the exact amount of the funeral expenses. The trial court

refused to grant the motion for new trial on the issue of damages. This Court reversed. In its opinion, the

Court separately examined the evidence put before the jury regarding each of the above four elements of
damages. In discussing net cash value, the Court reviewed the testimony of Dr. Paul Oliver, the plaintiff's

expert economist. Oliver was the only economic expert to testify in the case. Oliver testified that the

decedent's personal maintenance consumption allowance would be 26%, which is for a two-person family.

On cross-examination, one defense attorney asked Oliver to compute the decedent's lost income using a

40% personal consumption rate. On further cross-examination, the other defense attorney asked Oliver to

compute the decedent's lost income assuming at personal consumption rate of 67%. Thus, no matter which

rate the jury accepted as accurate, whether it was the 26% rate, the 40% rate, or the 67% rate, the jury

would have had to award something for net cash value. Instead, the jury awarded only funeral expenses.

Thus, this Court found error. The Court stated, "It is incredible that the verdict ignored and did not respond

favorably to this element of damages." Id. By finding such, this Court did not necessarily approve Oliver's

first computation of 26% which took into consideration a two-person family. Rather, the Court merely

stated that the verdict did not respond to the evidence which established that, at worst, the consumption

rate was 67%.

¶34. Returning to the case at hand, the majority concludes that "the consumption rate is another factor

which may be argued by the parties to the finder of fact in support of increasing or decreasing the

presumption that the deceased child's income would have been equivalent to the national average." Majority

Op. at *17. Interestingly, neither of the parties have argued that consumption rate should not be argued by

the parties to the fact finder. The parties have argued over whether the consumption rate should take into

account hypothetical dependents. Shaffer does not address this question, and neither does the majority.

¶35. Furthermore, the majority refuses to disturb the chancellor's decision to credit David Channell's

testimony regarding the personal consumption rate because, the majority concludes, the decision was

supported by substantial evidence. However, whether the consumption rate should take into account

hypothetical dependents is a question of law, not a question of fact, which this Court should review de

novo. McNeil v. Hester, 753 So. 2d 1057, 1063 (Miss. 2000) (citing Consolidated Pipe & Supply Co.

v. Colter, 735 So. 2d 958, 961 (Miss. 1999); Harrison County v. City of Gulfport, 557 So. 2d 780,

784 (Miss. 1990); Cole v. National Life Ins. Co., 549 So. 2d 1301, 1303 (Miss. 1989)).

¶36. For the foregoing reasons, I respectfully concur in part and dissent in part.

BANKS, P.J., AND COBB, J., JOIN THIS OPINION.

1. The Administrators do not appear to agree with Greyhound's assertion that the Court of Appeals's

interpretation of Miss. Code Ann. § 63-3-505 is unreasonable. Rather, the Administrators only argue that

the Court has given reasonable interpretations to the statute in the past, and in the present case, because the

bus driver had warning that the car was going to run the stop sign, the driver should have applied his

brakes.