Charles L. Bach, Jr., Luke M. Pittoni, New York City, and Michael F. McGowan, for Sara Garber, appellant.

Steven J. Ahmuty, Jr., and Thomas R. Newman, New York City, for New York Infirmary, appellant.

Michael A. Ellenberg, New York City, for Sonia Armengol and others, appellants.

Thomas A. Moore, New York City, for respondents.

Peter L. Zimroth, Corp. Counsel (Ingeborg B. Garfield and Fay Leoussis, of counsel), New York City, for the City of New York, amicus curiae.

[538 N.Y.S.2d 938] OPINION OF THE COURT

WACHTLER, Chief Judge.

This appeal raises fundamental questions about the nature and role of nonpecuniary damages in personal injury litigation. By nonpecuniary damages, we mean those damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities. Pecuniary damages, on the other hand, compensate the victim for the economic consequences of the injury, such as medical expenses, lost earnings and the cost of custodial care.

The specific questions raised here deal with assessment of nonpecuniary damages and are (1) whether some degree of cognitive awareness is a prerequisite to recovery for loss of enjoyment of life and (2) whether a jury should be instructed to consider and award damages for loss of enjoyment of life separately from damages for pain and suffering. We answer the first question in the affirmative and the second question in the negative.

I.

On September 7, 1978, plaintiff Emma McDougald, then 31 years old, underwent a Caesarean section and tubal ligation at New York Infirmary. Defendant Garber performed the surgery; defendants Armengol and Kulkarni provided anesthesia. During the surgery, Mrs. McDougald suffered oxygen deprivation which resulted in severe brain damage and left her in a permanent comatose condition. This action was brought by Mrs. McDougald and her husband, suing derivatively, alleging that the injuries were caused by the defendants' acts of malpractice.

A jury found all defendants liable and awarded Emma McDougald a total of $9,650,102 in damages, including $1,000,000 for conscious pain and suffering and a separate award of $3,500,000 for loss of the pleasures and pursuits of life. The balance of the damages awarded to her were for pecuniary damages--lost earnings and the cost of custodial and nursing care. Her husband was awarded $1,500,000 on his derivative claim for the loss of his wife's services. On defendants' posttrial motions, the Trial Judge reduced the total award to Emma McDougald to $4,796,728 by striking the entire award for future nursing care ($2,353,374) and by reducing the separate awards for conscious pain and suffering and loss of the pleasures and pursuits of life to a single award of $2,000,000 (McDougald v. Garber, 132 Misc.2d 457, 504 N.Y.S.2d 383). Her husband's award was left intact. On cross appeals, the Appellate Division affirmed (135 A.D.2d 80, 524 N.Y.S.2d 192) and later granted defendants leave to appeal to this court.

II.

We note at the outset that the defendants' liability for Emma McDougald's injuries is unchallenged here, except for a claim by Dr. Garber that liability against her was predicated on a theory not asserted in the complaint or bill of particulars. We agree with the Appellate Division, for the reasons stated by that court (see, 135 A.D.2d 80, 95-96, 524 N.Y.S.2d 192 supra ), that Dr. Garber's claim does not warrant a new trial on liability.

Also unchallenged are the awards in the amount of $770,978 for loss of earnings and $2,025,750 for future custodial care--that is, the pecuniary damage awards that survived defendants' posttrial motions.

What remains in dispute, primarily, is the award to Emma McDougald for nonpecuniary damages. At trial, defendants sought to show that Mrs. McDougald's injuries were so severe that she was incapable of either experiencing pain or appreciating her condition. Plaintiffs, on the other hand, introduced proof that Mrs. McDougald responded to certain stimuli to a sufficient extent to indicate that she was aware of her circumstances. Thus, the extent of Mrs. McDougald's cognitive abilities, if any, was sharply disputed.

The parties and the trial court agreed that Mrs. McDougald could not recover for pain and suffering unless she were conscious of the pain. Defendants maintained that such consciousness was also required to support an award for loss of enjoyment of life. The court, however, accepted plaintiffs' view that loss of enjoyment of life was compensable without regard to whether [538 N.Y.S.2d 939] the plaintiff was aware of the loss. Accordingly, because the level of Mrs. McDougald's cognitive abilities was in dispute, the court instructed the jury to consider loss of enjoyment of life as an element of nonpecuniary damages separate from pain and suffering. The court's charge to the jury on these points was as follows:

"If you conclude that Emma McDougald is so neurologically impaired that she is totally incapable of experiencing any unpleasant or painful sensation, then, obviously, she cannot be awarded damages for conscious pain * * *.

"It is for you to determine the level of Emma McDougald's perception and awareness. Suffering relates primarily to the emotional reaction of the injured person to the injury. Thus, for an injured person to experience suffering, there, again, must be some level of awareness. If Emma McDougald is totally unaware of her condition or totally incapable of any emotional reaction, then you cannot award her damages for suffering. If, however, you conclude that there is some level of perception or that she is capable of an emotional response at some level, then damages for pain and suffering should be awarded * * *.

"Damages for the loss of the pleasures and pursuits of life, however, require no awareness of the loss on the part of the injured person. Quite obviously, Emma McDougald is unable to engage in any of the activities which constitute a normal life, the activities she engaged in prior to her injury * * * Loss of the enjoyment of life may, of course, accompany the physical sensation and emotional responses that we refer to as pain and suffering, and in most cases it does. It is possible, however, for an injured person to lose the enjoyment of life without experiencing any conscious pain and suffering. Damages for this item of injury relate not to what Emma McDougald is aware of, but rather to what she has lost. What her life was prior to her injury and what it has been since September 7, 1978 and what it will be for as long as she lives."

We conclude that the court erred, both in instructing the jury that Mrs. McDougald's awareness was irrelevant to their consideration of damages for loss of enjoyment of life and in directing the jury to consider that aspect of damages separately from pain and suffering.

III.

We begin with the familiar proposition that an award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer (see, Sharapata v. Town of Islip, 56 N.Y.2d 332, 335, 452 N.Y.S.2d 347, 437 N.E.2d 1104; Prosser and Keeton, Torts, at 7 [5th ed.] ). The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred (1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions §§ 1.00, 1.02). To be sure, placing the burden of compensation on the negligent party also serves as a deterrent, but purely punitive damages--that is, those which have no compensatory purpose--are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence (see, Sharapata v. Town of Islip, supra, at 335, 452 N.Y.S.2d 347, 437 N.E.2d 1104; Prosser and Keeton, Torts, at 9-10 [5th ed.]; 1 Minzer, op. cit., § 1.03).

Damages for nonpecuniary losses are, of course, among those that can be awarded as compensation to the victim. This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages. An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on "the legal fiction that money damages can compensate for a victim's injury" (Howard v. Lecher, 42 N.Y.2d 109, 111, 397 N.Y.S.2d 363, 366 N.E.2d 64). We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace [538 N.Y.S.2d 940] for the condition created (see, Skelton v. Collins, 115 CLR 94, 130, 39 ALJR 480, 495 [Austl H C]).

Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive. The question posed by this case, then, is whether an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss serves a compensatory purpose. We conclude that it does not.

Simply put, an award of money damages in such circumstances has no meaning or utility to the injured person. An award for the loss of enjoyment of life "cannot provide [such a victim] with any consolation or ease any burden resting on him * * * He cannot spend it upon necessities or pleasures. He cannot experience the pleasure of giving it away" (Flanne v. United States, 4th Cir., 718 F.2d 108, 111, cert. denied 467 U.S. 1226, 104 S.Ct. 2679, 81 L.Ed.2d 874).

We recognize that, as the trial court noted, requiring some cognitive awareness as a prerequisite to recovery for loss of enjoyment of life will result in some cases "in the paradoxical situation that the greater the degree of brain injury inflicted by a negligent defendant, the smaller the award the plaintiff can recover in general damages" (McDougald v. Garber, 132 Misc.2d 457, 460, 504 N.Y.S.2d 383, supra). The force of this argument, however--the temptation to achieve a balance between injury and damages--has nothing to do with meaningful compensation for the victim. Instead, the temptation is rooted in a desire to punish the defendant in proportion to the harm inflicted. However relevant such retributive symmetry may be in the criminal law, it has no place in the law of civil damages, at least in the absence of culpability beyond mere negligence.

Accordingly, we conclude that cognitive awareness is a prerequisite to recovery for loss of enjoyment of life. We do not go so far, however, as to require the fact finder to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated. With respect to pain and suffering, the trial court charged simply that there must be "some level of awareness" in order for plaintiff to recover. We think that this is an appropriate standard for all aspects of nonpecuniary loss. No doubt the standard ignores analytically relevant levels of cognition, but we resist the desire for analytical purity in favor of simplicity. A more complex instruction might give the appearance of greater precision but, given the limits of our understanding of the human mind, it would in reality lead only to greater speculation.

We turn next to the question whether loss of enjoyment of life should be considered a category of damages separate from pain and suffering.

IV.

There is no dispute here that the fact finder may, in assessing nonpecuniary damages, consider the effect of the injuries on the plaintiff's capacity to lead a normal life. Traditionally, in this State and elsewhere, this aspect of suffering has not been treated as a separate category of damages; instead, the plaintiff's inability to enjoy life to its fullest has been considered one type of suffering to be factored into a general award for nonpecuniary damages, commonly known as pain and suffering.

Recently, however, there has been an attempt to segregate the suffering associated with physical pain from the mental anguish that stems from the inability to engage in certain activities, and to have juries provide a separate award for each (see generally, Annotation, Damages Element-Loss of Enjoyment of Life, 34 A.L.R.4th 293; Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac.L.J. 965 [1981]; Hermes, Loss of Enjoyment of Life--Duplication of Damages Versus Full Compensation, 63 North Dakota L.Rev. 561 [1987]).

Some courts have resisted the effort, primarily on the ground that duplicative and therefore excessive awards would result (see, e.g., Huff v. Tracy, 57 Cal.App.3d 939, 944, 129 Cal.Rptr. 551, 553; Poyzer v. McGraw, 360 N.W.2d 748, 752-753 [Iowa] ). [538 N.Y.S.2d 941] Other courts have allowed separate awards, noting that the types of suffering involved are analytically distinguishable (see, e.g., Rufino v. United States, 2nd Cir., 829 F.2d 354 [applying its prediction of New York law]; Thompson v. National R.R. Passenger Corp., 6th Cir., 621 F.2d 814, cert. denied 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497; Mariner v. Marsden, 610 P.2d 6 [Wyo]; Lebesco v. Southeastern Pa. Transp. Auth., 251 Pa.Super. 415, 380 A.2d 848). Still other courts have questioned the propriety of the practice but held that, in the particular case, separate awards did not constitute reversible error (see, e.g., Swiler v. Baker's Super Mkt., 203 Neb. 183, 277 N.W.2d 697; Pierce v. New York Cent. R.R. Co., 6th Cir., 409 F.2d 1392, 1398-1399).

In this State, the only appellate decisions to address the question are the decision of the Appellate Division, First Department, now under review (135 A.D.2d 80, 524 N.Y.S.2d 192, supra), and the decision of the Second Department in Nussbaum v. Gibstein, 138 A.D.2d 193, 531 N.Y.S.2d 276, revd. 73 N.Y.2d 912, 539 N.Y.S.2d 289, 536 N.E.2d 618 [decided today] ). Those courts were persuaded that the distinctions between the two types of mental anguish justified separate awards and that the potential for duplicative awards could be mitigated by carefully drafted jury instructions. In addition, the courts opined that separate awards would facilitate appellate review concerning the excessiveness of the total damage award.

We do not dispute that distinctions can be found or created between the concepts of pain and suffering and loss of enjoyment of life. If the term "suffering" is limited to the emotional response to the sensation of pain, then the emotional response caused by the limitation of life's activities may be considered qualitatively different (see, Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac.L.J. 965, 969-973). But suffering need not be so limited--it can easily encompass the frustration and anguish caused by the inability to participate in activities that once brought pleasure. Traditionally, by treating loss of enjoyment of life as a permissible factor in assessing pain and suffering, courts have given the term this broad meaning.

If we are to depart from this traditional approach and approve a separate award for loss of enjoyment of life, it must be on the basis that such an approach will yield a more accurate evaluation of the compensation due to the plaintiff. We have no doubt that, in general, the total award for nonpecuniary damages would increase if we adopted the rule. That separate awards are advocated by plaintiffs and resisted by defendants is sufficient evidence that larger awards are at stake here. But a larger award does not by itself indicate that the goal of compensation has been better served.

The advocates of separate awards contend that because pain and suffering and loss of enjoyment of life can be distinguished, they must be treated separately if the plaintiff is to be compensated fully for each distinct injury suffered. We disagree. Such an analytical approach may have its place when the subject is pecuniary damages, which can be calculated with some precision. But the estimation of nonpecuniary damages is not amenable to such analytical precision and may, in fact, suffer from its application. Translating human suffering into dollars and cents involves no mathematical formula; it rests, as we have said, on a legal fiction. The figure that emerges is unavoidably distorted by the translation. Application of this murky process to the component parts of nonpecunia injuries (however analytically distinguishable they may be) cannot make it more accurate. If anything, the distortion will be amplified by repetition.

Thus, we are not persuaded that any salutary purpose would be served by having the jury make separate awards for pain and suffering and loss of enjoyment of life. We are confident, furthermore, that the trial advocate's art is a sufficient guarantee that none of the plaintiff's losses will be ignored by the jury.

The errors in the instructions given to the jury require a new trial on the issue of nonpecuniary damages to be awarded to plaintiff Emma McDougald. Defendants' remaining contentions are either without [538 N.Y.S.2d 942] merit, beyond the scope of our review or are rendered academic by our disposition of the case.^[*]

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified, with costs to defendants, by granting a new trial on the issue of nonpecuniary damages of plaintiff Emma McDougald, and as so modified, affirmed.

TITONE, Judge (dissenting).

The majority's holding represents a compromise position that neither comports with the fundamental principles of tort compensation nor furnishes a satisfactory, logically consistent framework for compensating nonpecuniary loss. Because I conclude that loss of enjoyment of life is an objective damage item, conceptually distinct from conscious pain and suffering, I can find no fault with the trial court's instruction authorizing separate awards and permitting an award for "loss of enjoyment of life" even in the absence of any awareness of that loss on the part of the injured plaintiff. Accordingly, I dissent.

It is elementary that the purpose of awarding tort damages is to compensate the wronged party for the actual loss he or she has sustained (1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions § 1.00, at 1-3). Personal injury damages are awarded "to restore the injured person to the state of health he had prior to his injuries because that is the only way the law knows how to recompense one for personal injuries suffered" (Romeo v. New York City Tr. Auth., 73 Misc.2d 124, 126, 341 N.Y.S.2d 733; see, Thompson v. National R.R. Passenger Corp., 6th Cir., 621 F.2d 814, 824, cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497). Thus, this court has held that "[t]he person responsible for the injury must respond for all damages resulting directly from and as a natural consequence of the wrongful act" ( Steitz v. Gifford, 280 N.Y. 15, 20, 19 N.E.2d 661).

The capacity to enjoy life--by watching one's children grow, participating in recreational activities, and drinking in the many other pleasures that life has to offer--is unquestionably an attribute of an ordinary healthy individual. The loss of that capacity as a result of another's negligent act is at least as serious an impairment as the permanent destruction of a physical function, which has always been treated as a compensable item under traditional tort principles (e.g., Simpson v. Foundation Co., 201 N.Y. 479, 95 N.E. 10 [loss of sexual potency]; see, Robison v. Lockridge, 230 App.Div. 389, 390, 244 N.Y.S. 663). Indeed, I can imagine no physical loss that is more central to the quality of a tort victim's continuing life than the destruction of the capacity to enjoy that life to the fullest.

Unquestionably, recovery of a damage item such as "pain and suffering" requires a showing of some degree of cognitive capacity. Such a requirement exists for the simple reason that pain and suffering are wholly subjective concepts and cannot exist separate and apart from the human consciousness that experiences them. In contrast, the destruction of an individual's capacity to enjoy life as a result of a crippling injury is an objective fact that does not differ in principle from the permanent loss of an eye or limb. As in the case of a lost limb, an essential characteristic of a healthy human life has been wrongfully taken, and, consequently, the injured party is entitled to a monetary award as a substitute, if, as the majority asserts, the goal of tort compensation is "to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred" (majority opn., at 254, at 939 of 538 N.Y.S.2d, at 374 of 536 N.E.2d).

Significantly, this equation does not suggest a need to establish the injured's awareness of the loss. The victim's ability to comprehend the degree to which his or [538 N.Y.S.2d 943] her life has been impaired is irrelevant, since, unlike "conscious pain and suffering," the impairment exists independent of the victim's ability to apprehend it. Indeed, the majority reaches the conclusion that a degree of awareness must be shown only after injecting a new element into the equation. Under the majority's formulation, the victim must be aware of the loss because, in addition to being compensatory, the award must have "meaning or utility to the injured person." (Majority opn., at 254, at 940 of 538 N.Y.S.2d, at 375 of 536 N.E.2d.) This additional requirement, however, has no real foundation in law or logic. "Meaning" and "utility" are subjective value judgments that have no place in the law of tort recovery, where the primary goal is to find ways of quantifying, to the extent possible, the worth of various forms of human tragedy.

Moreover, the compensatory nature of a monetary award for loss of enjoyment of life is not altered or rendered punitive by the fact that the unaware injured plaintiff cannot experience the pleasure of having it. The fundamental distinction between punitive and compensatory damages is that the former exceed the amount necessary to replace what the plaintiff lost (see, Hartford Acc. & Indem. Co. v. Village of Hempstead, 48 N.Y.2d 218, 422 N.Y.S.2d 47, 397 N.E.2d 737). As the Court of Appeals for the Second Circuit has observed, "[t]he fact that the compensation [for loss of enjoyment of life] may inure as a practical matter to third parties in a given case does not transform the nature of the damages" (Rufino v. United States, 2nd Cir., 829 F.2d 354, 362).

Ironically, the majority's expressed goal of limiting recovery for nonpecuniary loss to compensation that the injured plaintiff has the capacity to appreciate is directly undercut by the majority's ultimate holding, adopted in the interest of "simplicity," that recovery for loss of enjoyment of life may be had as long as the injured plaintiff has " 'some level of awareness'", however slight (majority opn., at 255, at 940 of 538 N.Y.S.2d, at 375 of 536 N.E.2d). Manifestly, there are many different forms and levels of awareness, particularly in cases involving brain injury. Further, the type and degree of cognitive functioning necessary to experience "pain and suffering" is certainly of a lower order than that needed to apprehend the loss of the ability to enjoy life in all of its subtleties. Accordingly, the existence of "some level of awareness" on the part of the injured plaintiff says nothing about that plaintiff's ability to derive some comfort from the award or even to appreciate its significance. Hence, that standard does not assure that loss of enjoyment of life damages will be awarded only when they serve "a compensatory purpose," as that term is defined by the majority.^[*]

In the final analysis, the rule that the majority has chosen is an arbitrary one, in that it denies or allows recovery on the basis of a criterion that is not truly related to its stated goal. In my view, it is fundamentally unsound, as well as grossly unfair, to deny recovery to those who are completely without cognitive capacity while permitting it for those with a mere spark of awareness, regardless of the latter's ability to appreciate either the loss sustained or the benefits of the monetary award offered in compensation. In both instances, the injured plaintiff is in essentially the same position, and an award that is punitive as to one is equally punitive as to the other. Of course, since I do not subscribe to the majority's conclusion that an award to an unaware plaintiff is punitive, I would have no difficulty permitting recovery to both classes of plaintiffs.

Having concluded that the injured plaintiff's awareness should not be a necessary precondition to recovery for loss of enjoyment of life, I also have no difficulty going [538 N.Y.S.2d 944] on to conclude that loss of enjoyment of life is a distinct damage item which is recoverable separate and apart from the award for conscious pain and suffering. The majority has rejected separate recovery, in part because it apparently perceives some overlap between the two damage categories and in part because it believes that the goal of enhancing the precision of jury awards for nonpecuniary loss would not be advanced. However, the overlap the majority perceives exists only if one assumes, as the majority evidently has (see, majority opn, at 256-257, at 940-942 of 538 N.Y.S.2d, at 375-377 of 536 N.E.2d), that the "loss of enjoyment" category of damages is designed to compensate only for "the emotional response caused by the limitation of life's activities" and "the frustration and anguish caused by the inability to participate in activities that once brought pleasure" (emphasis added), both of which are highly subjective concepts.

In fact, while "pain and suffering compensates the victim for the physical and mental discomfort caused by the injury; * * * loss of enjoyment of life compensates the victim for the limitations on the person's life created by the injury", a distinctly objective loss (Thompson v. National R.R. Passenger Corp., supra, at 824). In other words, while the victim's "emotional response" and "frustration and anguish" are elements of the award for pain and suffering, the "limitation of life's activities" and the "inability to participate in activities" that the majority identifies are recoverable under the "loss of enjoyment of life" rubric. Thus, there is no real overlap, and no real basis for concern about potentially duplicative awards where, as here, there is a properly instructed jury.

Finally, given the clear distinction between the two categories of nonpecuniary damages, I cannot help but assume that permitting separate awards for conscious pain and suffering and loss of enjoyment of life would contribute to accuracy and precision in thought in the jury's deliberations on the issue of damages. Indeed, the view that itemized awards enhance accuracy by facilitating appellate review has already been expressed by the Legislature in enacting CPLR 4111(d) and (f) (see, 4 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 4111.13, at 41-205). In light of the concrete benefit to be gained by compelling the jury to differentiate between the specific objective and subjective elements of the plaintiff's nonpecuniary loss, I find unpersuasive the majority's reliance on vague concerns about potential distortion owing to the inherently difficult task of computing the value of intangible loss. My belief in the jury system, and in the collective wisdom of the deliberating jury, leads me to conclude that we may safely leave that task in the jurors' hands.

For all of these reasons, I approve of the approach that the trial court adopted in its charge to the jury. Accordingly, I would affirm the order below affirming the judgment.

SIMONS, KAYE, HANCOCK and BELLACOSA, JJ., concur with WACHTLER, C.J.

TITONE, J., dissents and votes to affirm in a separate opinion in which ALEXANDER, J., concurs.

Order, insofar as appealed from, modified, with costs to defendants, by granting a new trial on the issue of nonpecuniary damages of plaintiff Emma McDougald and, as so modified, affirmed.

[*] We note especially the argument raised by several defendants that plaintiffs' attorney was precluded by CPLR 3017(c) from mentioning, in his summation, specific dollar amounts that could be awarded for nonpecuniary damages. We do not resolve this issue, which has divided the lower courts (compare, Bagailuk v. Weiss, 110 A.D.2d 284, 494 N.Y.S.2d 205; and Bechard v. Eisinger, 105 A.D.2d 939, 481 N.Y.S.2d 906, with Braun v. Ahmed, 127 A.D.2d 418, 515 N.Y.S.2d 473), inasmuch as the matter was neither presented to nor addressed by the Appellate Division.

[*] Another problem with the majority's analysis is the absence of any discussion about the time frame to be used in measuring the award of damages for plaintiff's loss of enjoyment of life. Damages for "pain and suffering" are directly correlated to the plaintiff's experience of "pain and suffering" and thus are routinely awarded only for that period of time during which the injured had sufficient cognitive powers to have that experience. Damages for loss of enjoyment of life, in contrast, are awarded as a monetary replacement for the plaintiff's diminished ability to participate in the pleasures and pursuits of healthy living during the remainder of his or her natural life span. Thus, a legitimate question exists as to whether the plaintiff is entitled to recover an award representing his entire lifetime's loss notwithstanding that he was conscious of the loss for only a few moments before lapsing into cognitive oblivion. Furthermore, in view of the majority's conclusion that an award is not truly compensatory if it cannot be enjoyed by the injured party, an additional question arises as to whether the cognitive capacity of the plaintiff must be measured at the time when the award is to be given rather than at some earlier point before the commencement of trial.

[15 Cal.Rptr. 163] [364 P.2d 339] [56 Cal.2d 501] Harry M. Hunt, Pasadena, and David S. Smith, Los Angeles, for defendants and appellants.

Irving H. Green, Wright, Wright, Goldwater & Mack, John H. Rice and Andrew J. Weisz, Los Angeles, for plaintiff and respondent.

PETERS, Justice.

Defendants appeal from a judgment for plaintiff for $187,903.75 entered on a jury verdict. Their motion for a new trial for errors of law and excessiveness of damages was denied.

At the trial plaintiff contended that she was properly entering defendants' bus when the doors closed suddenly catching her right hand and left foot. The bus started, dragged her some distance, and then threw her to the pavement. Defendants contended that the injury resulted from plaintiff's own negligence, that she was late for work and either ran into the side of the bus after the doors had closed or ran after the bus and attempted to enter after the doors had nearly closed.

The evidence supports plaintiff's version of the facts. Several eyewitnesses testified that plaintiff started to board the bus while it was standing with the doors wide open. Defendants do not challenge the sufficiency of the evidence. They do contend, however, that prejudicial errors were committed during the trial and that the verdict is excessive.

There Was No Prejudicial Error on the Issue of Liability

Defendants contend that the court erred in giving instructions on res ipsa loquitur on the ground that the doctrine is inapplicable when, as in this case, the defendant does not possess superior knowledge concerning the accident or when, as in this case, the plaintiff plays an active part in the events leading to it. There is no merit in this contention. Superior knowledge by the defendant is not a pre-requisite for the application of the doctrine. Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 619-620, 155 P.2d 42, 158 A.L.R. 1008; see [56 Cal.2d 502] Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 202-204. Nor does participation by the plaintiff in the events leading to the accident preclude its application if there is evidence that plaintiff's negligence, if any, was not a proximate cause of the accident. Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 157, 323 P.2d 391; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444, 247 P.2d 344; see Fleming, Torts 299.

Defendants contend that the instruction on res ipsa loquitur erroenously shifted the burden of proof by requiring them to prove that they were not negligent. The instruction stated that if and only if plaintiff was a passenger as defined by prior instructions then 'from the happening of the accident * * * an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of defendant. That inference is a form of evidence^[1] and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. * * * In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, in which there is no negligence on the part of defendant, or (2) such care on the defendant's part as leads to the conclusion that the accident did [15 Cal.Rptr. 164] [364 P.2d 340] not happen because of want of care by him, but was due to some other cause, although the exact cause may be unknown. If such evidence has at least as much convincing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue.' (Italics added.)

Defendants quote the italicized part of the foregoing instruction out of context to support their contention that the instruction shifted the burden of proof. Read as a whole the instructions correctly state the law of California that if defendants are to prevail they must rebut the res ipsa loquitur inference with evidence of as convincing force. Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 437, 260 P.2d 63; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691, 268 P.2d 1041; Williams v. City of Long Beach, 42 Cal.2d 716, 718, 268 P.2d 1061.

Defendants also contend that the court erred in failing to caution the jury that the doctrine can be invoked [56 Cal.2d 503] only if the jury finds that the incident occurred as claimed by plaintiff and that plaintiff's negligence was not a contributory proximate cause. Hardin v. San Jose City Lines, Inc., supra, 41 Cal.2d 432, 435, 260 P.2d 63. Defendant did not request such a cautionary instruction. Moreover the subject was covered by other instructions.

The court instructed the jury that the doctrine of res ipsa loquitur applies 'if and only in the event' the jury should find that plaintiff was a passenger. Under the court's definition plaintiff was not a passenger unless she entered the bus when it was reasonably prudent to do so.^[2] In effect the instruction stated that the doctrine did not apply if the jury believed that the accident happened as defendant contended. Furthermore, the jury was instructed to return a verdict for defendant if it found that plaintiff was contributively negligent. There is, therefore, implied in the verdict a finding that the accident occurred as described by plaintiff rather than as described by defendants.

There is no merit in defendants' contention that the court committed prejudicial misconduct in conducting the examination of a nine-year-old witness. Because of her tender years the court conducted the initial examination, and, in a sympathetic, impartial, and commendable manner, elicited relevant testimony. Nearly all of the court's questions were asked without objection and defendants were given full opportunity to cross-examine.

None of the other claimed errors on the issue of liability, all minor in nature, has merit.

[56 Cal.2d 504] The Damages Were Not Excessive

One of the major contentions of defendants is that the damages are excessive, as a matter of law. There is no merit to this contention.

[15 Cal.Rptr. 165] [364 P.2d 341] The evidence most favorable to the plaintiff shows that prior to the accident plaintiff was in good health, and had suffered no prior serious injuries. She was single, and had been self supporting for 20 of her 42 years. The accident happened on October 11, 1957. The trial took place in July and August of 1959.

As already pointed out, the injury occurred when plaintiff was caught in the doors of defendants' bus when it started up before she had gained full entry. As a result she was dragged for some distance. The record is uncontradicted that her injuries were serious, painful, disabling and permanent.

The major injuries were to plaintiff's left foot. The main arteries and nerves leading to that foot, and the posterior tibial vessels and nerve of that foot, were completely severed at the ankle. The main blood vessel which supplies blood to that foot had to be tied off, with the result that there is a permanent stoppage of the main blood source. The heel and shin bones were fractured. There were deep lacerations and an avulsion^[3] which involved the skin and soft tissue of the entire foot.

These injuries were extremely painful. They have resulted in a permanently raised left heel, which is two inches above the floor level, caused by the the contraction of the ankle joint capsule. Plaintiff is crippled and will suffer pain for life.^[4] Although this pain could, perhaps, be alleviated by an operative fusion of the ankle, the doctors considered and rejected this procedure because the area has been deprived of its normal blood supply. The foot is not only permanently deformed but has a persistent open ulcer on the heel, there being a continuous drainge from the entire area. Medical care of this foot and ankle is to be reasonably expected for the remainder of plaintiff's life.

Since the accident, and because of it, plaintiff has undergone nine operations and has spent eight months in various hospitals and rehabilitation centers. These operations involved painful skin grafting and other painful procedures. One involved [56 Cal.2d 505] the surgical removal of gangrenous skin leaving painful raw and open flesh exposed from the heel to the toe. Another involved a left lumbar sympathectomy in which plaintiff's abdomen was entered to sever the nerves affecting the remaining blood vessels of the left leg in order to force those blood vessels to remain open at all times to the maximum extent. Still another operation involved a cross leg flap graft of skin and tissue from plaintiff's thigh which required that her left foot be brought up to her right thigh and held at this painful angle, motionless, and in a cast for a month until the flap of skin and fat, partially removed from her thigh, but still nourished there by a skin connection, could be grafted to the bottom of her foot, and until the host site could develop enough blood vessels to support it. Several future operations of this nature may be necessary. One result of this operation was to leave a defective area of the thigh where the normal fat is missing and the muscles exposed and the local nerves are missing. This condition is permanent and disfiguring.

Another operation called a debridement, was required. This involved removal of many small muscles of the foot, much of the fat beneath the skin, cleaning the end of the severed nerve, and tying off the severed vein and artery.

The ulcer on the heel is probably permanent, and there is the constant and real danger that osteomyelitis may develop if the infection extends into the bone. If this happens the heel bone would have to be removed surgically and perhaps the entire foot amputated.

Although plaintiff has gone back to work, she testified that she has difficulty standing, walking or even sitting, and must lie down frequently; that the leg is still very painful; [15 Cal.Rptr. 166] [364 P.2d 342] that she can, even on her best days, walk not over three blocks and that very slowly; that her back hurts from walking; that she is tired and weak; that her sleep is disturbed; that she has frequent spasms in which the leg shakes uncontrollably; that she feels depressed and unhappy, and suffers humiliation and embarrassment.

Plaintiff claims that there is evidence that her total pecuniary loss, past and future, amounts to $53,903.75. This was the figure used by plaintiff's counsel in his argument to the jury, in which he also claimed $134,000 for pain and suffering, past and future. Since the verdict was exactly the total of these two estimates, it is reasonable to assume that the jury accepted the amount proposed by counsel for each item. Braddock v. [56 Cal.2d 506] Seaboard Air Line Railroad Company, Fla.1955, 80 So.2d 662, 665.The summary of plaintiff as to pecuniary loss, past and future, is as follows:

Doctor and Hospital Bills ......... $10,330.50
Drugs and other medical expenses
  stipulated to in the
   amount of ........................ 2,273.25
Loss of earnings from time of
   accident to time of trial ........ 5,500.00  $18,103.75
                                    ----------
Future Medical Expenses:
 $2,000 per year for next 10
   years ........................... 20,000.00
 $200 per year for the 24 years
   thereafter ....................... 4,800.00
 Drugs for 34 years ................. 1,000.00   25,800.00
                                    ----------  ----------
                                                 43,903.75
Possible future loss of earnings ............... 10,000.00
                                                ----------
Total Pecuniary Loss .......................... $53,903.75

There is substantial evidence to support these estimates. The amounts for past doctor and hospital bills, for the cost of drugs, and for a past loss of earnings, were either stipulated to, evidence was offered on, or is a simple matter of calculation. These items totaled $18,103.75. While the amount of $25,800 estimated as the cost of future medical expense, for loss of future earnings and for the future cost of drugs, may seem high, there was substantial evidence that future medical expense is certain to be high. There is also substantial evidence that plaintiff's future earning capacity may be substantially impaired by reason of the injury. The amounts estimated for those various items are not out of line, and find support in the evidence.

This leaves the amount of $134,000 presumably allowed for the nonpecuniary items of damage, including pain and suffering, past and present. It is this allowance that defendants seriously attack as being excessive as a matter of law.

It must be remembered that the jury fixed these damages, and that the trial judge denied a motion for new trial, one ground of which was excessiveness of the award. These determinations are entitled to great weight. The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and [56 Cal.2d 507] the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court (McChristian v. Popkin, 75 Cal.App.2d 249, 263, 171 P.2d 85). The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury. The proper rule was stated in Holmes v. Southern Cal. Edison Co., 78 Cal.App.2d 43, 51, 177 P.2d 32, 36, as follows: 'The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented, it becomes his duty to reduce them. (Citing cases.) When the question is raised his denial of a motion for new trial is an indication that he approves [15 Cal.Rptr. 167] [364 P.2d 343] the amount of the award. An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors.' In Holder v. Key System, 88 Cal.App.2d 925, 940, 200 P.2d 98, 106, the court, after quoting the above from the Holmes case added: 'The question is not what this court would have awarded as the trier of the fact, but whether this court can say that the award is so high as to suggest passion or prejudice.' In Wilson v. Fitch, 41 Cal. 363, 386, decided in 1871, there appears the oft-quoted statement that: 'The Court will not interfere in such cases unless the amount awarded is so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice. In this case, whilst the sum awarded appears to be much larger than the facts demanded, the amount cannot be said to be so grossly excessive as to be reasonably imputed only to passion or prejudice in the jury. In such cases there is no accurate standard by which to compute the injury, and the jury must, necessarily, be left to the exercise of a wide discretion; to be restricted by the Court only when the sum awarded is so large that the verdict shocks the moral sense, and raises a presumption that [56 Cal.2d 508] it must have proceeded from passion or prejudice.' This same rule was announced in Johnston v. Long, 30 Cal.2d 54, 76, 181 P.2d 645, 658, where it was stated that it 'is not the function of a reviewing court to interfere with a jury's award of damages unless it is so grossly disproportionate to any reasonable limit of compensation warranted by the facts that it shocks the court's sense of justice and raises a presumption that it was the result of passion and prejudice.' See also Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483, 488, 319 P.2d 343; Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 359, 282 P.2d 23, 51 A.L.R.2d 107; Zibbell v. Southern Pacific Co., 160 Cal. 237, 255, 116 P. 513.

There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. Crystal Pier Amusement Co. v. Cannan, 219 Cal. 184, 192, 25 P.2d 839, 91 A.L.R. 1357. The amount to be awarded is 'a matter on which there legitimately may be a wide difference of opinion' (Roedder v. Lindsley, 28 Cal.2d 820, 823, 172 P.2d 353, 355). In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent's favor, and must give him the benefit of every inference reasonably to be drawn from the record (Kimic v. San Jose-Los Gatos etc. Ry. Co., 156 Cal. 273, 277, 104 P. 312).

While the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. Such examination demonstrates that such awards vary greatly. See exhaustive annotations in 16 A.L.R.2d 3, and 16 A.L.R.2d 393. Injuries are seldom identical and the amount of pain and suffering involved in similar physical injuries varies widely. These factors must be considered. Leming v. Oilfields Trucking Co., supra, 44 Cal.2d 343, 356, 282 P.2d 23, 51 A.L.R.2d 107; Crane v. Smith, 23 Cal.2d 288, 302, 144 P.2d 356. Basically, the question that should be decided by the appellate courts is whether or not the verdict is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice.

In the instant case, the nonpecuniary items of damage include allowances for pain and suffering, past and future, humiliation as a result of being disfigured and being permanently [56 Cal.2d 509] crippled, and constant [15 Cal.Rptr. 168] [364 P.2d 344] anxiety and fear that the leg will have to be amputated. While the amount of the award is high, and may be more than we would have awarded were we the trier of the facts, considering the nature of the injury, the great pain and suffering, past and future, and the other items of damage, we cannot say, as a matter of law, that it is so high that it shocks the conscience and gives rise to the presumption that it was the result of passion or prejudice on the part of the jurors.

Defendant next complains that it was prejudicial error for plaintiff's counsel to argue to the jury that damages for pain and suffering could be fixed by means of a mathematical formula predicated upon a per diem allowance for this item of damages. The propriety of such an argument seems never to have been passed upon in this state. In other jurisdictions there is a sharp divergence of opinion on the subject. See annotation 60 A.L.R.2d 1331. It is not necessary to pass on the propriety of such argument in the instant case because, when plaintiff's counsel made the argument in question, defendants' counsel did not object, assign it as misconduct or ask that the jury be admonished to disregard it. Moreover, in his argument to the jury, the defendants' counsel also adopted a mathematical formula type of argument. This being so, even if such argument were error (a point we do not pass upon), the point must be deemed to have been waived, and cannot be raised, properly, on appeal. State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 340, 240 P.2d 282.

The judgment appealed from is affirmed.

GIBSON, C. J., and WHITE and DOOLING, JJ., concur.

TRAYNOR, Justice (dissenting).

I dissent.

Although I agree that there was no prejudicial error on the issue of liability, it is my opinion that the award of $134,000 for pain and suffering is so excessive as to indicate that it was prompted by passion, prejudice, whim, or caprice.^[1]

Before the accident plaintiff was employed as a file clerk [56 Cal.2d 510] at a salary of $375 a month. At the time of the trial she had returned to her job at the same salary and her foot had healed sufficiently for her to walk. At the time of the accident she was 42 years old with a life expectancy of 34.9 years.During closing argument plaintiff's counsel summarized the evidence relevant to past and possible future damages and proposed a specific amount for each item. His total of $187,903.75 was the exact amount awarded by the jury.

His proposed amounts were as follows:
Doctor and Hospital Bills ......... $10,330.50
Drugs and other medical expenses
   stipulated to in the
   amount of ........................ 2,273.25
Loss of earnings from time of
   accident to time of trial ........ 5,500.00   $18,103.75
                                    ----------
Future Medical Expenses:
 $2,000 per year for next ten
   years ........................... 20,000.00
 $200 per year for the 24 years
   thereafter ....................... 4,800.00
 Drugs for 34 years ................. 1,000.00    25,800.00
                                    ----------  -----------
                                                  43,903.75
Possible future loss of earnings ................ 10,000.00
                                                -----------
Total Pecuniary Loss ............................ 53,903.75
Pain and Suffering:
 From time of accident to time
   of trial (660 days) @ $100 a
 day ............................... 66,000.00
 For the remainder of her life
   (34 years) @ $2,000 a year ...... 68,000.00   134,000.00
                                    ----------  -----------
Total proposed by counsel ..................... $187,903.75
                                                -----------

The jury and the trial court have broad discretion in determining the damages in a [15 Cal.Rptr. 169] [364 P.2d 345] personal injury case. Johnston v. Long, 30 Cal.2d 54, 76, 181 P.2d 645; Roedder v. Lindsley, 28 Cal.2d 820, 823, 172 P.2d 353. A reviewing court, however, has responsibilities not only to the litigants in an action but to future litigants and must reverse or remit when a jury awards either inadequate or excessive damages. E. g., Clifford v. Ruocco, 39 Cal.2d 327, 329, 246 P.2d 651 (inadequate award); Torr v. United Railroads, 187 Cal. 505, 509, 202 P. 671 (inadequate award); Chinnis v. Pomona Pump Co., 36 Cal.App.2d 633, 642-643, 98 P.2d 560 (inadequate award): Bellman v. San, Francisco H. S. Dist., 11 Cal.2d 576, 588, 81 P.2d 894 (excessive award); Mondine v. Sarlin, 11 Cal.2d 593, 600, 81 P.2d 903 (excessive award); Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 510, 55 P.2d 870 (excessive [56 Cal.2d 511] award); Phelps v. Cogswell, 70 Cal. 201, 204, 11 P. 628 (excessive award).

The crucial question in this case, therefore, is whether the award of $134,000 for pain and suffering is so excessive it must have resulted from passion, prejudice, whim or caprice. 'To say that a verdict has been influenced by passion or prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence.' Zibbell v. Southern Pacific Co., 160 Cal. 237, 255, 116 P. 513, 520; see Doolin v. Omnibus Cable Co., 125 Cal. 141, 144, 57 P. 774.

There has been forceful criticism of the rationale for awarding damages for pain and suffering in negligence cases. Morris, Liability for Pain and Suffering, 59 Col.L.Rev. 476; Plant, Damages for Pain and Suffering, 19 Ohio L.J. 200; Jaffe, Damages for Personal Injury: The Impact of Insurance, 18 Law and Contemporary Problems 219; Zelermyer, Damages for Pain and Suffering, 6 Syracuse L.Rev. 27. Such damages originated under primitive law as a means of punishing wrongdoers and assuaging the feelings of those who had been wronged. Morris, Liability for Pain and Suffering, supra, 59 Col.L.Rev. at 478; Jaffe, Damages for Personal Injury: The Impact of Insurance, surpa, 18 Law and Contemporary Problems at 222-223. They become increasingly anomalous as emphasis shifts in a mechanized society from ad hoc punishment to orderly distribution of losses through insurance and the price of goods or of transportation. Ultimately such losses are borne by a public free of fault as part of the price for the benefits of mechanization. Cf. Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 347-348, 5 Cal.Rptr. 863; Henningsen v. Bloomfield Motors Inc., 32 N.J. 358, 161 A.2d 69, 77, 75 A.L.R.2d 1; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 462, 150 P.2d 436 (concurring opinion).

Nonetheless, this state has long recognized pain and suffering as elements of damages in negligence cases (Zibbell v. Southern Pacific Co., supra, 160 Cal. 237, 250, 116 P. 513; Roedder v. Lindsley, supra, 28 Cal.2d 820, 822, 172 P.2d 353); any change in this regard must await reexamination of the problem by the Legislature. Meanwhile, awards for pain and suffering serve to ease plaintiffs' discomfort and to pay for attorney fees for which plaintiffs are not otherwise compensated.

It would hardly be possible ever to compensate a person fully for pain and suffering. "No rational being would change places with the injured man for an amount of gold [56 Cal.2d 512] that would fill the room of the court, yet no lawyer would contend that such is the legal measure of damages." Zibbell v. Southern Pacific Co., supra, 160 Cal. 237, 255, 116 P. 513, 520; see 2 Harper and James, The Law of Torts 1322. 'Translating pain and naguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable. * * * The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury. * * *' McCormick, Damages § [15 Cal.Rptr. 170] [364 P.2d 346] 88, pp. 318-319. Such restraint and common sense were lacking here.

A review of reported cases involving serious injuries and large pecuniary losses reveals that ordinarily the part of the verdict attributable to pain and suffering does not exceed the part attributable to pecuniary losses. See 16 A.L.R.2d 3-390; 18 West California Digest, Damages k130-132. The award in this case of $134,000 for pain and suffering exceeds not only the pecuniary losses but any such award heretofore sustained in this state even in cases involving injuries more serious by far than those suffered by plaintiff. See Leming v. Oilfields Trucking Co., 1955, 44 Cal.2d 343, 358, 282 P.2d 23, 51 A.L.R.2d 107; Deshotel v. Atchison, T. & S. F. Ry. Co., 1956, 144 Cal.App.2d 224, 231, 300 P.2d 910; McNulty v. Southern Pacific Co., 1950, 96 Cal.App.2d 841, 847, 216 P.2d 534, discussed in Kalven, The Jury and The Damage Award, 19 Ohio L.J. 158, 170; Sullivan v. City and County of San Francisco, 1950, 95 Cal.App.2d 745, 758-761, 214 P.2d 82; Gluckstein v. Lipsett, 1949, 93 Cal.App.2d 391, 398, 209 P.2d 98; Huggans v. Southern Pacific Co., 1949, 92 Cal.App. 599, 615, 207 P.2d 864. In McNulty v. Southern Pacific Co., supra, the court reviewed a large number of cases involving injuries to legs and feet, in each of which the total judgment, including both pecuniary loss and pain and suffering did not exceed $100,000.^[2] Although excessive damages is 'an issue which is primarily factual * * * and is not therefore a matter which can be decided upon the basis of the awards made in other cases,' (Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 356, 282 P.2d 23, 31; Crane v. Smith, 23 Cal.2d 288, 302, 144 P.2d 356) awards for similar injuries [56 Cal.2d 513] may be considered as one factor to be weighed in determining whether the damages awarded are excessive. Maede v. Oakland High School Dist., 212 Cal. 419, 425, 298 P. 987; McNulty v. Southern Pacific Co., supra, 96 Cal.App.2d 841, 848, 216 P.2d 534.

The excessive award in this case was undoubtedly the result of the improper argument of plaintiff's counsel to the jury. Though no evidence was introduced, though none could possibly be introduced on the monetary value of plaintiff's suffering, counsel urged the jury to award $100 a day for pain and suffering from the time of the accident to the time of trial and $2,000 a year for pain and suffering for the remainder of plaintiff's life.

The propriety of counsel's proposing a specific sum for each day or month of suffering has recently been considered by courts of several jurisdictions. See 19 Ohio L. J. 780; 33 So.Cal.L.Rev. 214, 216. The reasons for and against permitting 'per diem argument for pain and suffering' are reviewed in Ratner v. Arrington, Fla.App., 111 So.2d 82, 85-90 (1959 Florida decision holding such argument is permissible) and Botta v. Burnner, 26 N.J. 82, 138 A.2d 713, 718-725, 60 A.L.R.2d 1331 (1958 New Jersey decision holding such argument to be an 'unwarranted intrusion into the domain of the jury.')

The reason usually advanced for not allowing such argument is that since there is no way of translating pain and suffering into monetary terms, counsel's proposal of a particular sum for each day of suffering represents an opinion and a conclusion on matters not disclosed by the evidence, and tends to mislead the jury and result in excessive awards. The reason usually advanced for allowing 'per diem argument for pain and suffering' is that it affords the jury as good an arbitrary measure as any for that which cannot be measured.

Counsel may argue all legitimate inferences from the evidence, but he may not employ arguments that tend primarily to mislead the jury. People v. Purvis, 52 Cal.2d 871, 886, 346 P.2d 22; People v. Johnson, 178 Cal.App.2d 360, 372, 3 Cal.Rptr. 28; Affett v. Milwaukee and Suburban Transport Co., 11 Wis.2d 604, 106 N.W.2d [15 Cal.Rptr. 171] [364 P.2d 347] 274, 280; Michael and Adler, Trial of an Issue of Fact, 34 Col.L.Rev. 1224, 1483-1484; cf. Rogers v. Foppiano, 23 Cal.App.2d 87, 94-95, 72 P.2d 239. A specified sum for pain and suffering for any particular period is bound to be conjectural. Positing such a sum for a small period of time and then multiplying that sum [56 Cal.2d 514] by the number of days, minutes or seconds in plaintiff's life expectancy multiplies the hazards of conjecture. Counsel could arrive at any amount he wished by adjusting either the period of time to be taken as a measure or the amount surmised for the pain for that period.

'The absurdity of a mathematical formula is demonstrated by applying it to its logical conclusion. If a day may be used as a unit of time in measuring pain and suffering, there is no logical reason why an hour or a minute or a second could not be used, or perhaps even a heart beat since we live from heart beat to heart beat. If one cent were used for each second of pain, this would amount to $3.60 per hour, to $86.40 per twenty-four-hour day, and to $31,536 per year. The absurdity of such a result must be apparent, yet a penny a second for pain and suffering might not sound unreasonable. * * * The use of the formula was prejudicial error.' Affett v. Milwaukee Suburban Transport Co., surpa, 11 Wis.2d 604, 106 N.W.2d 274, 280.

The misleading effect of the per diem argument was not cured by the use of a similar argument by defense counsel. Truth is not served by a clash of sophistic arguments. See Michael and Adler, The Trial of an Issue of Fact, 34 Col.L.Rev. 1224, 1483-1484. Had defendant objected to the improper argument of plaintiff's counsel this error would be a sufficient ground for reversal whether or not the award was excessive as a matter of law. Defendant's failure to object, however, did not preclude its appeal on the ground that the award was excessive as a matter of law or preclude this court's reversing on that ground and ruling on the impropriety of counsel's argument to guide the court on the retrial. Code Civ.Proc. § 53.

I would reverse the judgment and remand the cause for a new trial on the issue of damages.

SCHAUER and McCOMB, JJ., concur.

Rehearing denied; TRAYNOR, SCHAUER and McCOMB, JJ., dissenting.

[1] Cf. Blank v. Coffin, 20 Cal.2d 457, 465, 126 P.2d 868; McBaine, Inferences, Are They Evidence, 31 Cal.L.Rev. 108, 112.

[2] The court stated that the passenger relationship was established 'when: (1) a person who intends in good faith and is prepared to become a passenger, has arrived at a place, which has been designated by custom or notice of the carrier as a site from which the carrier will take on passengers, and (2), the person stands alongside or near the probable stopping place of the bus, or approaches and goes toward and arrives close to the entrance doors of the bus standing at the site to receive passengers, or otherwise had indicated to the bus driver her intention to board the bus; and (3), the bus driver takes or has taken some action which indicates the immediate acceptance by the carrier of such person as a passenger, and in this respect the stopping by a bus driver of a bus of a carrier, at a site, as site is hereinbefore defined, for the purpose of taking on passengers and the opening by the bus driver of the entrance doors of the bus to receive such persons indicates the willingness, intention and readiness of the carrier to accept such person as a passenger; and (3) (sic) when it being reasonably prudent so to do the person makes her first contact with the bus in the act of entering it or in any event when she gains entrance to the bus. * * *' (Italics added.) It is not necessary to decide whether the foregoing instruction defines a passenger too narrowly, for any error in this respect favors defendants.

[3] Defined in Webster's New International Dictionary (2 ed.) as a 'tearing asunder; forcible separation.'

[4] Her life expectancy was 34.9 years from the time of trial.

__________

[1] The award of $53,903.75 for pecuniary loss, past and present is also suspect. The amount awarded for future medical expenses is $12,196.25 greater than the medical expenses incurred from the time of the accident to the time of trial, a period of nearly two years. The amount awarded for future loss of earnings is $4,500 greater than plaintiff's past loss of earnings. Yet the evidence indicates that plaintiff's medical care has been largely completed and that the future loss of earnings will not exceed the earnings lost by the prolonged stays in the hospital and the rehabilitation center.

[2] The verdicts in some of these cases were over $100,000 but in each case the award was reduced to $100,000 or less.

[765 So.2d 1270] Luther T. Munford, Jackson, Reginald Arthur Gray, III, Hattiesburg, Rebecca Hawkins, Christopher R. Green, Ridgeland, Attorneys for Appellant.

Keith M. Alexander, Southaven, F. Douglas Montague, III, Hattiesburg, Crymes G. Pittman, Jackson, David Shoemake, Collins, C. Victor Welsh, III, Jackson, Attorneys for Appellees.

EN BANC.

ON WRIT OF CERTIORARI

MILLS, Justice, for the Court:

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 [765 So.2d 1271] 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.

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

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.

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.

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.

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

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 [765 So.2d 1272] 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

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).

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]

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 [765 So.2d 1273] 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.

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.

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 [765 So.2d 1274] decrease her speed when approaching and negotiating the curve. Id. at 935.

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.

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.

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.

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 [765 So.2d 1275] 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.

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

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.

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, [765 So.2d 1276] 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.

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.

Who is to say that a child from the most impoverished part of the state or with extremely poor parents has less of a [765 So.2d 1277] 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.

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.

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. Co. v. Thornton, 191 So.2d 547, 551 (Miss.1966) (citing Illinois Cent. R.R. v. Ragan, 252 Miss. 335, 173 So.2d 433 (1965)).

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.

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 [765 So.2d 1278] 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.

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 [765 So.2d 1279] 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).

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

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.

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:

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.

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 [765 So.2d 1280] 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-CA-00637-SCT, slip. op. ¶ 37.

The majority states, "Contrary to the opinion of the Court of Appeals, we have indeed recognized personal consumption factors," citing Shaffer. Majority Op. at 1278. 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.

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%.

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 1279. 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.

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, [765 So.2d 1281] 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)).

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.