2020 Georgia Code
Title 51 - Torts
Chapter 4 - Wrongful Death
§ 51-4-1. Definitions

Universal Citation: GA Code § 51-4-1 (2020)

As used in this chapter, the term:

  1. "Full value of the life of the decedent, as shown by the evidence" means the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived.
  2. "Homicide" includes all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.

(Ga. L. 1887, p. 43, § 1; Civil Code 1895, § 3829; Civil Code 1910, § 4425; Ga. L. 1924, p. 60, § 2; Code 1933, §§ 105-1301, 105-1308; Ga. L. 1978, p. 2218, § 2.)

Law reviews.

- For article, "Economic Evaluation of Damages in Personal Injury and Wrongful Death Litigation," see 19 Ga. St. B. J. 60 (1982). For annual survey of law of torts, see 38 Mercer L. Rev. 351 (1986). For article, "Problems in Calculating and Awarding Compensatory Damages for Wrongful Death Under the Federal Tort Claims Act," see 36 Emory L.J. 149 (1987). For article, "The Discount Rate in Georgia Personal Injury and Wrongful Death Damage Calculations," see 13 Ga. St. U.L. Rev. 431 (1997). For article, "Calculating Economic Damages in Georgia Personal Injury and Wrongful Death Cases," see 22 Ga. St. B. J. 18 (2017). For comment on Rogers v. Hime, 76 Ga. App. 523, 46 S.E.2d 367 (1948), see 11 Ga. B. J. 75 (1948). For comment on Complete Auto Transit Co. v. Floyd, 249 F.2d 396 (5th Cir. 1957), holding that a statute which, if applied, would subject the defendant to double recovery of medical and funeral expenses was unconstitutional as against that defendant because it deprives the defendant of its property without due process of law, see 21 Ga. B. J. 244 (1958).

JUDICIAL DECISIONS

ANALYSIS

  • General Considerations
  • Homicide
  • Damages
  • Jury Instructions

General Considerations

Standing.

- Legislature intended that there always be a right of recovery in the case of the homicide of a child, under O.C.G.A. § 19-7-1(c), and when the child's surviving spouse was precluded from this right of recovery, the child's parent had standing to bring a cause of action for the wrongful death of the child in order to recover for the full value of the child's life. Carringer v. Rodgers, 276 Ga. 359, 578 S.E.2d 841 (2003).

Causation.

- Trial court erred in granting summary judgment for the Georgia Department of Transportation (DOT) in a wrongful death action as there was a question of fact as to causation because although the parents' evidence that there was a gouge in the shoulder the day after the collision was not direct evidence to contradict the DOT's evidence that there was not a gouge on the day of the collision, the parents' experts agreed that the severe drop-off the driver encountered when the driver left the east-side roadway and lost control of the car. Karwacki v. Ga. DOT, 276 Ga. App. 628, 624 S.E.2d 171 (2005).

Parents' wrongful death claim under O.C.G.A. § 19-7-1 pertaining to an unclipped rear seat failed on summary judgment because the unclipped seat did not contribute to their child's fatal skull fracture, and there was thus no evidence showing proximate causation under O.C.G.A. § 51-1-11(b)(1) between the unclipped seat and the child's death; the parents also did not assert a survival action in order to permit recovery for pain and suffering in that such damages were not permitted under O.C.G.A. §§ 19-7-1 and51-4-1. Davenport v. Ford Motor Co., F. Supp. 2d (N.D. Ga. Dec. 11, 2007).

Proper construction of the statute is that it gives a right of action for damages for any negligence which was actionable at common law.

- Wrongful Death Act did not undertake to state or define what "other negligence" meant. Caskey v. Underwood, 89 Ga. App. 418, 79 S.E.2d 558 (1953).

To extent that this section permits recovery of more than loss to survivor it is punitive. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), aff'd, 688 F.2d 1025 (5th Cir. 1982).

Official immunity for wrongful death.

- When officers responded to a call reporting a domestic disturbance at a residence, the decedent resisted the officers attempt to arrest the decedent, and the officer shot and killed the decedent, it was error to grant the shooting officer official immunity as to a wrongful death claim because a jury could find that the officer intentionally shot the decedent after the struggle ended and at a time when the decedent was lying on the floor, unarmed and compliant. Felio v. Hyatt, F.3d (11th Cir. Jan. 26, 2016)(Unpublished).

Mental suffering caused by death is not element of damage. Glawson v. Southern Bell Tel. & Tel. Co., 9 Ga. App. 450, 71 S.E. 747 (1911).

The emotional upset of the plaintiff in a wrongful death action, if any, cannot be considered by the jury in awarding damages, if any. YMCA v. Bailey, 112 Ga. App. 684, 146 S.E.2d 324 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131, 17 L. Ed. 2d 95 (1966).

When party's negligence is willful and wanton, that party is debarred from pleading that the other party was trespasser, or was negligent or was a wrongdoer. McKinsey v. Wade, 136 Ga. App. 109, 220 S.E.2d 30 (1975).

Burden is upon the plaintiff to prove that death resulted "from a crime or from criminal or other negligence." Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483, cert. denied, 436 U.S. 921, 98 S. Ct. 2272, 56 L. Ed. 2d 764 (1978).

Evidence that the defendant pled guilty to act in prior criminal proceeding is admissible in evidence. Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483, cert. denied, 436 U.S. 921, 98 S. Ct. 2272, 56 L. Ed. 2d 764 (1978).

Justification is defense which renders behavior noncriminal. Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483, cert. denied, 436 U.S. 921, 98 S. Ct. 2272, 56 L. Ed. 2d 764 (1978).

Proof that decedent was sole support of widow and her children is irrelevant, and the allowance of such evidence is harmful error. Central of Ga. Ry. v. Prior, 142 Ga. 536, 83 S.E. 117 (1914).

Mortuary tables are admissible in evidence to establish the full value of the life of the children's deceased father. David v. Southwestern R.R., 41 Ga. 223 (1870).

Evidence offered by expert on value of life of deceased may take into account statistical studies and inflationary trends. Georgia S. & Fla. Ry. v. Odom, 152 Ga. App. 664, 263 S.E.2d 469 (1979).

Transfer of property to spouse pending unliquidated wrongful death claim.

- Summary judgment was error when an issue of fact remained as to whether an unliquidated wrongful death claim at the time of a killer's property transfer without consideration to the killer's spouse rendered the killer insolvent and material issues remained as to fraud. Bryant v. Browning, 259 Ga. App. 467, 576 S.E.2d 925 (2003).

Procedural due process satisfied.

- Georgia's state law provision for review of the personnel board's decision through certiorari to the county superior court satisfies the requirements of procedural due process. Jones v. City of E. Point, 795 F. Supp. 408 (N.D. Ga. 1992), aff'd, 987 F.2d 775 (11th Cir. 1993).

Official liability for detainee's suicide.

- Liability for detainee's suicide was determined accordingly: immunity for county commissioners with no authority over the operations of the jail or the sheriff's department; immunity for jail administrator with no knowledge of decedent's incarceration; and potential respondeat superior liability for sheriff with knowledge of the decedent's suicidal intent and ratification of the negligent acts of the decedent's subordinates. Merideth v. Grogan, 812 F. Supp. 1223 (N.D. Ga. 1992), aff'd, 985 F.2d 579 (11th Cir. 1993).

Cited in Western & A.R.R. v. Gray, 172 Ga. 286, 157 S.E. 482 (1931); Georgia R.R. & Banking Co. v. Farmer, 45 Ga. App. 130, 164 S.E. 71 (1932); Western & A.R.R. v. Michael, 178 Ga. 1, 172 S.E. 66 (1933); Hunt v. Western & A.R.R., 49 Ga. App. 33, 174 S.E. 222 (1934); Shermer v. Crowe, 53 Ga. App. 418, 186 S.E. 224 (1936); Thompson v. Watson, 186 Ga. 396, 197 S.E. 774 (1938); Hawkins v. National Sur. Corp., 63 Ga. App. 367, 11 S.E.2d 250 (1940); Atlanta, B. & C.R.R. v. Thomas, 64 Ga. App. 253, 12 S.E.2d 494 (1940); Atlantic Coast Line R.R. v. Mitchell, 157 F.2d 880 (5th Cir. 1946); Lewis v. Williams, 78 Ga. App. 494, 51 S.E.2d 532 (1949); Brewer v. United States, 108 F. Supp. 889 (M.D. Ga. 1952); Dixon v. Ross, 94 Ga. App. 187, 94 S.E.2d 86 (1956); Complete Auto Transit, Inc. v. Floyd, 249 F.2d 396 (5th Cir. 1957); Willitt v. Purvis, 276 F.2d 129 (5th Cir. 1960); Hartz v. United States, 415 F.2d 259 (5th Cir. 1969); Bulloch County Hosp. Auth. v. Fowler, 227 Ga. 638, 182 S.E.2d 443 (1971); Smith, Kline & French Labs. v. Just, 126 Ga. App. 643, 191 S.E.2d 632 (1972); Ford Motor Co. v. Carter, 239 Ga. 657, 238 S.E.2d 361 (1977); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483 (1978); Self v. Executive Comm. of Ga. Baptist Convention, Inc., 151 Ga. App. 698, 259 S.E.2d 695 (1979); Greenway v. Peabody Int'l Corp., 163 Ga. App. 698, 294 S.E.2d 541 (1982); Allrid v. Emory Univ., 166 Ga. App. 130, 303 S.E.2d 486 (1983); McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983); Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 311 S.E.2d 193 (1983); Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 337 S.E.2d 351 (1985); Gilmere v. City of Atlanta, 864 F.2d 734 (11th Cir. 1989); Dowling v. Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993); Manning v. Manning, 270 Ga. 86, 508 S.E.2d 157 (1998).

Homicide

Georgia wrongful death statute is unusual, in that it permits recovery only for the "homicide" of various family members. Higginbotham v. Ford Motor Co., 540 F.2d 762 (5th Cir. 1976).

Under the Wrongful Death Act, O.C.G.A. § 51-4-1 et seq., and O.C.G.A. § 19-7-1(c), the parent of a decedent child who was murdered by the decedent's surviving spouse had standing to bring a cause of action for the wrongful death of the child against the murdering spouse and/or another individual or entity proximately causing the child's death; the parent could recover for the full value of the life of the child. Carringer v. Rodgers, 276 Ga. 359, 578 S.E.2d 841 (2003).

Language "other negligence" embraces homicide resulting from any negligence other than criminal negligence, and includes a homicide resulting from simple or ordinary negligence. Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932).

"Homicide" action includes products liability action.

- By including "death caused by defectively manufactured property," in the definition of "homicide," O.C.G.A. § 51-4-1 provides the spouse with the right to recover for the wrongful death of the plaintiff's spouse, in a products liability action. Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981).

O.C.G.A. § 51-4-1 makes one liable for wrongful death under the strict liability provisions existing in O.C.G.A. § 51-1-11 to the same extent the latter code section makes one liable for injury to person or property. Stiltjes v. Ridco Exterminating Co., 256 Ga. 255, 347 S.E.2d 568 (1986).

Sale of goods.

- A wrongful death action may not be predicated on a breach of warranty arising from the sale of goods, except specified articles intended for human consumption or use. Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 386 S.E.2d 513 (1989).

Sale of firearm to suicide victim.

- Genuine issues of material fact as to what store employees should have reasonably foreseen as a result of the sale of a rifle to a mentally incompetent customer, who later killed oneself with it, precluded summary judgment for the store in a wrongful death action. Knight v. Wal-Mart Stores, Inc., 889 F. Supp. 1532 (S.D. Ga. 1995).

Vehicle not manufactured by defendant.

- Defendant used-car dealer could not be held liable under a complaint alleging that the plaintiffs' decedent was killed while driving a used car purchased from the defendant which was defective when manufactured and that the car was covered by an express warranty of merchantability, issued by the defendant at the time of purchase, since the vehicle in question was not manufactured by the defendant. Ryals v. Billy Poppell, Inc., 192 Ga. App. 787, 386 S.E.2d 513 (1989).

Negligent driving resulting in death under Georgia and Iraqi law.

- Georgia law provided for recovery for wrongful death caused by negligence, O.C.G.A. § 51-4-1, and recovery for wrongful death was available in all cases in which the death of a human being resulted from a crime, or from criminal or other negligence; that included when a wrongful death was caused by negligent unsafe driving. Iraqi law similarly provided for a cause of action for wrongful death in Iraqi Civil Law art. 203 and Iraqi Civ. Code No. 40, art. 227, which provided that every person had the right of passage on the public road provided the person observed the safety precautions so that the person would not cause injury to a third party or to oneself when safety precautions may be taken; because the parents alleged that the company violated the lieutenant colonel's right of safe passage on a public road by negligent driving that ultimately resulted in the lieutenant colonel's death, and because the company's negligence resulted in death, a cause of action existed under Iraqi law, and Iraqi law on that issue was thus not inconsistent with Georgia public policy. Baragona v. Kuwait Gulf Link Transp. Co., 691 F. Supp. 2d 1346 (N.D. Ga. 2007).

Pesticides.

- Paragraph (2) of O.C.G.A. § 51-4-1, as amended in 1978, would permit a claim against a pesticide manufacturer for strict liability based on inadequate warnings or instructions regarding its pesticides. Stiltjes v. Ridco Exterminating Co., 256 Ga. 255, 347 S.E.2d 568 (1986).

When there is some evidence from which jury could reach conclusion that shooting in self-defense was justified, there would be no tortious misconduct and a verdict for the defendant is sustainable. Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483, cert. denied, 436 U.S. 921, 98 S. Ct. 2272, 56 L. Ed. 2d 764 (1978).

Since the evidence for the plaintiff widow was insufficient to authorize the finding that the defendant employee was not justified in killing the spouse of the plaintiff, the verdict against the defendant employee, the employee's master and the defendant agent who hired the employee, was unauthorized. Hanna v. Estridge, 59 Ga. App. 182, 200 S.E. 174 (1938).

Parents not responsible for decedent's death while attending party.

- Parents were entitled to summary judgment dismissing a wrongful death suit as there was no genuine issue of material fact regarding whether the parents could have foreseen that the decedent would attend a party their minor child held at their home in their absence, or that the decedent would voluntarily ingest prescription drugs furnished by a third person. Tims v. Hasselberger, 298 Ga. App. 256, 679 S.E.2d 731 (2009).

Intentional termination of life support a wrongful death claim, not a malpractice claim.

- The trial court properly refused to dismiss a plaintiff's claim asserting tortious termination of life support based on the defendant's argument that it was really a medical malpractice claim and, therefore, required an expert medical affidavit under O.C.G.A. § 9-11-9.1; because such a claim is a suit for wrongful death, not medical malpractice, no expert medical affidavit was necessary. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007), cert. denied, No. S08C0710, 2008 Ga. LEXIS 477 (Ga. 2008).

Damages

Measure of damages.

- When the defendant is liable and there is no reason to reduce the damages, the plaintiff is entitled to recover the value of the decedent's life. Western & A.R.R. v. Reed, 35 Ga. App. 538, 134 S.E. 134 (1926).

The measure of recovery is the full value of the life of the deceased, irrespective of its real value to the person in whom the cause of action is vested. Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932).

In a wrongful death action, the measure of damages is "the full value of the life" and no authority requires that the "full value" itself, once arrived at, must be reduced any more than "market value," once arrived at, must be reduced when that measure of damages is applicable. City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622 (1968).

Factfinder is permitted wide latitude in calculating the "full value" of the decedents' lives. Economic losses associated with the decedents' deaths may be considered, as well as any noneconomic, intangible losses deemed relevant, however, consideration of the personal expenses and income taxes that the decedents would have incurred had the decedents lived is not permitted. Childs v. United States, 923 F. Supp. 1570 (S.D. Ga. 1996).

After the court charged the jury that if the plaintiffs were entitled to recover damages, the plaintiffs could recover "the full value of the life of deceased without deduction" for the personal expenses of that person, had they lived, and that the measure of damages was the full value of the life of the child as found by the jury's enlightened conscience, there was no error. Williams v. Worsley, 235 Ga. App. 806, 510 S.E.2d 46 (1998), recons. denied; overruled on other grounds by Rockdale Hospital, LLC v. Evans, 306 Ga. 847, 834 S.E.2d 77 (2019).

Evidence of a decedent's sex life, abortions, missing work due to being pregnant out of wedlock, and giving up children for adoption was inadmissible in a wrongful death action prosecuted on behalf of decedent's child. Brock v. Wedincamp, 253 Ga. App. 275, 558 S.E.2d 836 (2002).

Gross value of the spouse's life, regardless of dependency, or previous contribution to the plaintiff's support is the proper measure of damages. Boswell v. Barnhart, 96 Ga. 521, 23 S.E. 414 (1895).

Full value of life of decedent is its present value, and that is arrived at by determining from the evidence the gross value of the life of the decedent, and then reducing this amount to its present cash value. Central of Ga. Ry. v. Keating, 45 Ga. App. 811, 165 S.E. 873 (1932), rev'd on other grounds, 177 Ga. 345, 170 S.E. 493 (1933).

Full value of life of spouse to oneself is the test. Atlantic, V. & W.R.R. v. McDilda, 125 Ga. 468, 54 S.E. 140 (1906).

Term "full value of the life of the decedent" is construed to mean gross sum that deceased would have earned to end of the deceased's life reduced to its present cash value. The law fixes the basis of the jury's calculation, but does not prescribe any Procrustean method by which the damage must be arrived at. In arriving at the amount of damages, the jury should consider the age of the deceased at the time of death, the deceased's health, the deceased's habits, the amount of money the deceased was earning, the deceased's expectation of life, the probable loss of employment, voluntary abstinence from work, dullness in business, reduction of wages, the increasing infirmities of age, with a corresponding diminution of earning capacity, and other causes which may contribute to illustration of the gross earnings of a lifetime. Pollard v. Boatwright, 57 Ga. App. 565, 196 S.E. 215 (1938).

Full value may include other considerations.

- While a jury may, depending upon the facts of the case, determine that the full value of the decedent's life is the gross sum that the decedent would have earned to the end of the decedent's life, had the decedent lived, reduced to its present cash value, the jury is not bound to find that lifetime earnings reduced to present value is the "full value of the life of the decedent" but such is an aid only to the jury in making such determination. Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242, 183 S.E.2d 586 (1971), overruled on other grounds, 131 Ga. App. 321, 205 S.E.2d 421 (1974).

The "full value of the life of the decedent" consists of two elements, the economic value of the deceased's normal life expectancy and the intangible element incapable of exact proof. Therefore, in arriving at the value of the life of the decedent the jury is not bound to find that lifetime earnings reduced to present value is the full value of the life of the decedent, but such is an aid only to the jury in making such determination. Miller v. Jenkins, 201 Ga. App. 825, 412 S.E.2d 555 (1991), cert. denied, 201 Ga. App. 904, 412 S.E.2d 555 (1992).

The phrase "without deducting for any of the necessary or personal expenses of the decedent had he lived" means that the standard of recovery is not confined to the actual pecuniary loss of the plaintiff, but includes the full monetary value of the life of the deceased, no matter how much of that value would have found its way into the hands of the plaintiff had the deceased lived. Har-Pen Truck Lines v. Mills, 378 F.2d 705 (5th Cir. 1967).

Upon proof as to person's age, health, and value of the person's services, the jury may estimate the value of life, and reduce that value to its present cash value, by any method satisfactory to them which produces a definite result that is fair and reasonable and is authorized by the evidence. Central of Ga. Ry. v. Keating, 45 Ga. App. 811, 165 S.E. 873 (1932), rev'd on other grounds, 177 Ga. 345, 170 S.E. 493 (1933).

Deceased spouse being co-beneficiary of services did not discount value.

- In a spouse's wrongful death suit against the Georgia Department of Transportation, the trial court did not err by allowing the surviving spouse's economic expert to testify as to the value of the deceased spouse's household services without isolating and subtracting the value the deceased spouse had received as the fact that the deceased spouse may have been a co-beneficiary of a service for the household did not discount the value of the service to the other members of the household. DOT v. Baldwin, 292 Ga. App. 816, 665 S.E.2d 898 (2008).

In estimating value of ordinary services rendered by decedent, jury is authorized to take into consideration what may be the value of many services incapable of exact proof, but measured in the light of their own observation and experience. Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542 (1938); Smith v. McBride, 119 Ga. App. 94, 166 S.E.2d 407 (1969).

In cases of infants of tender years, it is impossible to give exact evidence of pecuniary value of the probable loss and the question of damages of the loss is left to sound judgment, experience, and conscience of the jury without any exact proof thereof. The enlightened conscience of a jury means also the jury's informed conscience. Seaboard Coast Line R.R. v. Duncan, 123 Ga. App. 479, 181 S.E.2d 535 (1971).

In arriving at "full value," jury may take into consideration items which must be reduced to present cash value, such as the lifetime income of the deceased, if any, or the value of services rendered by a deceased wife or mother when there is direct evidence of the monetary value of such services. City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622 (1968).

It is not "full value of the life" measure of damages, which must be reduced, but only properly reducible items which aid jury in arriving at full value. City of Macon v. Smith, 117 Ga. App. 363, 160 S.E.2d 622 (1968).

In a wrongful death action, the "full value of the life of the decedent" includes compensation for sums payable as loss of earnings. State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447, 271 S.E.2d 844 (1980).

Loss of services may be awarded as part of the full value of a deceased child's life. South Fulton Medical Ctr. Inc. v. Poe, 224 Ga. App. 107, 480 S.E.2d 40 (1996).

Damages not recoverable for both coma state and subsequent death.

- Damages that a husband (on behalf of his wife who was in a coma) recovered or that were recoverable in an earlier personal injury lawsuit could not be recovered again in a wrongful death suit when the wife died twenty years later, having never awoken; the value of the wife's life in a coma to her was all that the survivors could recover. Bibbs v. Toyota Motor Corp., 304 Ga. 68, 815 S.E.2d 850 (2018).

Construction almost universally followed for wrongful death statutes is that jury are confined to pecuniary loss, and that nothing can be allowed by way of solatium for the grief and wounded feelings of the beneficiaries, or to compensate them for the mere loss of society or of companionship which they have suffered. Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242, 183 S.E.2d 586 (1971), overruled on other grounds, 131 Ga. App. 321, 205 S.E.2d 421 (1974).

Veteran's benefits received by decedent.

- Regardless of whether compensation paid to a veteran for disability is characterized as arising from services rendered by the decedent, or as compensation for a disability, the benefits constitute readily provable income of the decedent which ceased because of the decedent's death, and are admissible to prove the economic component of the full value of the decedent's life. Consolidated Freightways Corp. v. Futrell, 201 Ga. App. 233, 410 S.E.2d 751, cert. denied, 201 Ga. App. 903, 410 S.E.2d 751 (1991).

Damages for depriving deceased's minor child of guidance and assistance of the child's father were not recoverable, as such, separately from the value of life of the deceased and could be considered only the question of value of the life of the deceased. Southern Ry. v. Turner, 89 Ga. App. 785, 81 S.E.2d 291 (1954).

Wrongful death action should not include expenses of decedent's last illness.

- Trial court erroneously expanded the scope of wrongful death actions under the Wrongful Death Act, O.C.G.A. § 51-4-1 et seq., to include the expenses of the decedent's last illness when the trial court satisfied the O.C.G.A. § 44-14-470(b) medical services lien of a hospital out of the limited insurance proceeds instead of satisfying the decedent's children's wrongful death claims out of the proceeds since: (1) the children filed a wrongful death complaint; (2) the available insurance proceeds were then deposited into a court registry without the decedent's estate ever making a claim for medical payments; and (3) the available insurance proceeds were insufficient to cover the children's wrongful death claims. Nash v. Allstate Ins. Co., 256 Ga. App. 143, 567 S.E.2d 748 (2002).

Evidence of church activities and religious beliefs.

- Generally, evidence of a decedent's church activities and religious beliefs are not relevant to prove pecuniary loss in a wrongful death action. However, such evidence may be relevant as an aspect of the intangible element of the full value of the life of a deceased. Consolidated Freightways Corp. v. Futrell, 201 Ga. App. 233, 410 S.E.2d 751, cert. denied, 201 Ga. App. 903, 410 S.E.2d 751 (1991).

Interest may be added from time of death to the verdict. Standard Oil Co. v. Reagan, 15 Ga. App. 571, 84 S.E. 69 (1915); City of Thomasville v. Jones, 17 Ga. App. 625, 87 S.E. 923 (1916).

Punitive damages are not available in a wrongful death claim, since O.C.G.A. § 51-4-1, to the extent it permits recovery of more than the actual loss to the survivor, is itself punitive. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E.2d 470 (1984).

Settlement of claim.

- When a claim under this section is settled, the estate of the deceased is not entitled to proceeds. Cooper v. Cooper, 30 Ga. App. 710, 119 S.E. 335 (1923).

There can be no recovery for future earnings of person injured unless there is evidence of life expectancy; however, when the age of the person in question is shown, expectancy of life may be determined by the jury without having the mortality tables before them or without any other direct evidence on the subject. Western & A.R.R. v. Groover, 42 Ga. App. 200, 155 S.E. 500 (1930).

No need for evidence of future earnings in case of young child.

- In the case of a parent suing for the death of a minor child, it is not necessary for the evidence to show what the future earnings might be in cases when there is no selection of a vocation or other facts from which future earnings can be determined. Collins v. McPherson, 91 Ga. App. 347, 85 S.E.2d 552 (1954).

Jury Instructions

In wrongful death case, charge to jury on damages in language of this section is sufficient. Radcliffe v. Maddox, 45 Ga. App. 676, 165 S.E. 841 (1932).

Jury instructions.

- Failure to charge the jury with more particularity concerning intangible factors was not harmful error since the instructions given combined with a mortality table and an instruction given regarding its use, adequately and fully charged the jury regarding the measure of damages. Miller v. Jenkins, 201 Ga. App. 825, 412 S.E.2d 555 (1991), cert. denied, 201 Ga. App. 904, 412 S.E.2d 555 (1992).

Instructions on mortality tables.

- Proper instructions for use of mortality and annuity tables are found in Florida C. & P.R.R. v. Burney, 98 Ga. 1, 26 S.E. 730 (1895).

It was error to charge jury on question of prospects of increased earnings of deceased since there was no evidence to authorize the charge. Wimpy v. Rogers, 58 Ga. App. 67, 197 S.E. 656 (1938).

No charge on future earning capacity of child unnecessary when no evidence presented.

- When there is no evidence whatever on earnings or earning capacity, and when such evidence is not necessary to a recovery, and when the jury has not been instructed by the trial court to determine the full value of the life of the deceased child based on what the child would have earned during the child's life expectancy, it is not error for the trial court to leave the full value of the life of the child to the enlightened conscience of an impartial jury, based on evidence of the child's age, the child's precocity, the services rendered by the child up to the time of the child's death, the circumstances of the family, and from experience and knowledge of human affairs on the part of the jury, and to fail to charge that any amount awarded the plaintiff as the full value of the life of the deceased daughter should be reduced to present cash value. Collins v. McPherson, 91 Ga. App. 347, 85 S.E.2d 552 (1954).

Jury instruction erroneous when reference made to value of decedent's life to person bringing suit.

- When the first sentence of a charge is clearly erroneous in that the charge states that the plaintiff's recovery shall be confined to "her pecuniary interest in the life of her daughter, or the value of that life to the plaintiff," and, it is clear that the second sentence of a charge properly stated the measure of damages, the trial judge did not expressly call the attention of the jury to the incorrect statement, and explain to the jury that the charge was erroneous, the charge clearly could have misled the jury and confused the jury. Hudson v. Cole, 102 Ga. App. 300, 115 S.E.2d 825 (1960).

Charge was calculated to mislead jury into belief that defendant company was guilty of criminal negligence since the court's definition of "homicide" was taken directly from the language of this section and there is no error in the court's giving this definition in the language of the section. Georgia R.R. & Banking Co. v. Farmer, 45 Ga. App. 130, 164 S.E. 71 (1932).

RESEARCH REFERENCES

8 Am. Jur. Pleading and Practice Forms, Death, § 4.

ALR.

- Skier's liability for injuries to or death of another person, 75 A.L.R.5th 583.

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