The opinion
Marian F. Penix, Judge, dissenting. It is never easy to attempt to gauge the amount of mental suffering experienced by the family of a young person who is accidentally killed. However, the case law in Arkansas has laid down legal principles that must be employed in determining whether there is any evidence justifying the submission of mental anguish as an element of damage. The record reflects the deceased had been a delinquent youth. There was testimony Rickey McCollum had been in trouble with the law and had been an incorrigible. While Rickey was incarcerated in Oklahoma in 1975 his mother moved to Paris, Arkansas. Rickey ran away from the industrial school in Oklahoma and went to Texas. His mother did not see him for long periods of time. In the few months preceding the fatal accident Rickey had lived as a transient and stayed the night infrequently with his mother.
St. Louis Southwestern Railway Company v. Pennington, Admr., 261 Ark. 650 , 553 S.W. 2d 436 (1977) sets out the following elements which have been considered by the Arkansas case law to be significant indications of “more than the normal grief occasioned by the loss of a loved one”:
(1) Sleeplessness or troubled sleep over an extended period.
(2) Frequency of association and communication
(3) Obvious extreme or unusual nervous reaction to the death
(4) Crying spells over an extended period of time
(5) Adverse effect on survivor’s work or school
(6) Change of personality of the survivor
(7) Loss of weight by survivor and other physical symptoms.
We can of course conjecture the Mother grieved over Rickey’s delinquency, but there is absolutely nothing in this record to indicate the grief over his death was other than normal. Arkansas cases require a showing of more than normal grief. The Court erred in submitting to the jury mental anguish as an element of the family’s damage.
As a mother, I agonize for Rickey McCollum’s mother. However, a great portion of Arkansas law is based on case law. Our cases have many times over required a definite showing of grief over and beyond the normal grief before mental anguish becomes a proper element of damage to be submitted to the jury. Our legal system is built upon Arkansas cases taken as precedent.
I respectfully dissent.