2020 Georgia Code
Title 51 - Torts
Chapter 4 - Wrongful Death
§ 51-4-2. Persons Entitled to Bring Action for Wrongful Death of Spouse or Parent; Survival of Action; Release of Wrongdoer; Disposition of Recovery; Exemption From Liability for Decedent's Debts; Recovery Not Barred When Child Born Out of Wedlock

Universal Citation: GA Code § 51-4-2 (2020)
  1. The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.
    1. If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.
    2. If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.
  2. The surviving spouse may release the alleged wrongdoer without the concurrence of the child or children or any representative thereof and without any order of court, provided that such spouse shall hold the consideration for such release subject to subsection (d) of this Code section.
    1. Any amount recovered under subsection (a) of this Code section shall be equally divided, share and share alike, among the surviving spouse and the children per capita, and the descendants of children shall take per stirpes, provided that any such recovery to which a minor child is entitled and which equals less than $15,000.00 shall be held by the natural guardian of the child, who shall hold and use such money for the benefit of the child and shall be accountable for same; and any such recovery to which a minor child is entitled and which equals $15,000.00 or more shall be held by a guardian of the property of such child.
    2. Notwithstanding paragraph (1) of this subsection, the surviving spouse shall receive no less than one-third of such recovery as such spouse's share.
  3. No recovery had under subsection (a) of this Code section shall be subject to any debt or liability of the decedent.
  4. In actions for recovery under this Code section, the fact that a child has been born out of wedlock shall be no bar to recovery.

(Laws 1850, Cobb's 1851 Digest, p. 476; Ga. L. 1855-56, p. 154, § 4; Code 1863, § 2913; Code 1868, § 2920; Code 1873, § 2971; Ga. L. 1878-79, p. 59, §§ 1, 2; Code 1882, § 2971; Ga. L. 1887, p. 43, § 1; Civil Code 1895, §§ 3828, 3829; Civil Code 1910, §§ 4424, 4425; Ga. L. 1924, p. 60, §§ 1, 2; Code 1933, §§ 105-1302, 105-1303, 105-1304, 105-1305; Ga. L. 1973, p. 488, § 1; Ga. L. 1985, p. 1253, § 1; Ga. L. 1986, p. 10, § 51; Ga. L. 1988, p. 1720, § 17; Ga. L. 1993, p. 1055, § 1; Ga. L. 1998, p. 605, § 1.)

Editor's notes.

- Ga. L. 1998, p. 605, § 2, not codified by the General Assembly, provided that the Act shall be applicable to all wrongful death actions arising on or after July 1, 1998.

Law reviews.

- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For article, "What's a Human Life Really Worth? Recovering Damages for Decedents' Non-Economic Losses in Georgia Wrongful Death Actions," see 7 Ga. St. U.L. Rev. 439 (1991). For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000). For annual survey on appellate practice and procedure, see 61 Mercer L. Rev. 31 (2009). For note advocating consistency of inheritance and wrongful death rights with adopted child's new legal status, see 23 Mercer L. Rev. 1003 (1972). For note, "Standing to Sue for Wrongful Death in Georgia When a Spouse and Children Survive the Tortious Death: Mack v. Moore," see 3 Ga. St. U.L. Rev. 281 (1987). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 233 (1993). For comment on Bloodworth v. Jones, 191 Ga. 193, 11 S.E.2d 658 (1940), see 3 Ga. B. J. 65 (1941). For comment on Odom v. Atlantic & W.P.R.R., 78 Ga. App. 477, 51 S.E.2d 466 (1949), see 12 Ga. B. J. 76 (1949). For comment advocating recognition in Georgia of the rights of illegitimate children to recover for wrongful death of father, in light of Armijo v. Wesselius, 73 Wash. 2d 716, 440 P.2d 471 (1968), see 20 Mercer L. Rev. 469 (1969).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Procedure
  • Wrongful Death of Spouse
  • Wrongful death of child
  • Stepparents
  • Decisions Under Former § 51-4-3

General Consideration

Constitutionality.

- The amendment of 1924 adding the words "minor or sui juris" after the words "child or children" is constitutional. Peeler v. Central of Ga. Ry., 163 Ga. 784, 137 S.E. 24 (1927).

The equality demanded by U.S. Const., amend. 14 is not violated by embracing homicides arising from ordinary or simple negligence with those arising from wanton, willful, or criminal negligence. Such a classification is not arbitrary. In making its classification, the General Assembly is not required to make a distinction arising from different degrees of negligence; but it can embrace all wrongful homicides under one classification, and subject them to the same penalties. Western & A.R.R. v. Michael, 175 Ga. 1, 165 S.E. 37 (1932).

A plaintiff's not being able to recover punitive damages in a wrongful death action does not violate the plaintiff's right to equal protection of the laws. Berman v. United States, 572 F. Supp. 1486 (N.D. Ga. 1983).

There is no denial of equal protection in O.C.G.A. § 51-4-2 giving greater rights to surviving spouses than to children to sue for wrongful death since there is a rational basis for the differentiation in the need to designate a representative of the beneficiaries of any recovery, which the statute provides shall be distributed between the surviving spouse and the children. Mack v. Moore, 256 Ga. 138, 345 S.E.2d 338 (1986).

The 1985 amendment to O.C.G.A. § 51-4-2 and the General Assembly's repeal of O.C.G.A § 51-4-3 corrected the constitutional infirmity which caused this court to declare § 51-4-2 unconstitutional in Tolbert v. Murrell, 253 Ga. 566, 322 S.E.2d 487 (1984), i.e., the disparate treatment of different classes of children. Mack v. Moore, 256 Ga. 138, 345 S.E.2d 338 (1986).

The 1985 amendment to O.C.G.A. § 51-4-2, conferring exclusive standing upon the surviving spouse to bring a wrongful death action, could not be applied retroactively to bar a son's suit on a claim which arose prior to the effective date of the amendment (April 10, 1985). Cole v. Roberts, 648 F. Supp. 415 (M.D. Ga. 1986).

Strict construction.

- Georgia's wrongful death cause of action was statutorily created and did not evolve from common law, and because it was not available at common law, it must be strictly construed. Potts v. United Technologies Corp., 879 F. Supp. 1196 (N.D. Ga. 1994).

Creation of a cause of action for wrongful death depends upon state statutes, for no such right existed at common law. Edenfield v. Jackson, 251 Ga. 491, 306 S.E.2d 911 (1983).

The statutory right to bring an action for wrongful death enures only to the decedent's spouse and children who are living at the time the action accrues. Tolbert v. Maner, 271 Ga. 207, 518 S.E.2d 423 (1999).

In a suit for legal malpractice and unjust enrichment, a superior court properly found that an attorney was entitled to summary judgment on an unjust enrichment claim because a decedent's first wife and the first wife's two children conferred no benefit on the attorney in an underlying case; neither the first wife nor the first wife's children were authorized to pursue an action for the wrongful death of the decedent as that right belonged to the second wife, the surviving spouse pursuant to O.C.G.A. § 51-4-2. Rommelman v. Hoyt, 295 Ga. App. 19, 670 S.E.2d 808 (2008), cert. denied, No. S09C0516, 2009 Ga. LEXIS 203 (Ga. 2009).

Claims for wrongful death and pain and suffering are distinct.

- An individual's claim for wrongful death and an estate's claim for the decedent's pain and suffering are distinct causes of action. Smith v. Memorial Medical Ctr., Inc., 208 Ga. App. 26, 430 S.E.2d 57 (1993).

Children's rights adequately protected.

- Since the decedent's children contended that they possess a property right in the action for their father's wrongful death and they further asserted that O.C.G.A. § 51-4-2, in granting his surviving third wife the exclusive right to initiate that action, denied them an effective procedure through which they might vindicate their right, it was held that since the surviving spouse owes a duty to the children to prudently assert, prosecute, or settle the wrongful death claim and the failure to do this could subject the spouse to liability for breach of duty as a representative, any property interest that the children might have in an action for their parent's wrongful death was adequately protected. O'Kelley v. Hospital Auth., 256 Ga. 373, 349 S.E.2d 382 (1986), appeal dismissed, 480 U.S. 926, 107 S. Ct. 1559, 94 L. Ed. 2d 753 (1987).

District court did not err in dismissing the claims of decedent's childrens' guardians as decedent's spouse had a blood relationship with the children and was present and able to manage the estate of the deceased spouse. Mann v. Taser Int'l, Inc., 588 F.3d 1291 (11th Cir. 2009).

Under common law, right to recover for negligent homicide of husband, wife, parent, or child did not exist.

- The Acts from which this chapter was codified establish liability for wrongful death where none existed before. Burns v. Brickle, 106 Ga. App. 150, 126 S.E.2d 633 (1962).

This section changed the common-law rule that action for damages on account of death of human being would not lie and, therefore, must be strictly construed. Weems v. Saul, 52 Ga. App. 470, 183 S.E. 661 (1936); Adams v. Powell, 67 Ga. App. 460, 21 S.E.2d 111 (1942).

This section gives a right which did not exist at common law and should therefore receive a strict construction. Boggan v. Boggan, 145 Ga. App. 401, 243 S.E.2d 664 (1978).

Legislative intent.

- It was the purpose of the General Assembly in the passage of this Act to exclude dependency as a prerequisite essential to a child's right to recover for the homicide of a parent; and the provision of the Act entitling a child, whether minor or sui juris, to recover damages for the homicide of its parent, properly construed, makes the question whether the child is dependent upon such parent in any respect wholly immaterial. Peeler v. Central of Ga. Ry., 163 Ga. 784, 137 S.E. 24 (1927).

This section evidences an intent to give a right of action for the homicide of the father only when death is caused by the tort of one other than a member of the class designated. Thompson v. Watson, 186 Ga. 396, 197 S.E. 774 (1938), disapproved sub nom Walden v. Coleman, 217 Ga. 599, 124 S.E.2d 265 (1962).

Construction suggesting full participation.

- Current version of O.C.G.A. § 51-4-2 does not contain the language from the 1960 amendment specifically providing that fewer than all survivors may bring a wrongful death action, but the Court of Appeals of Georgia holds that although the current law does not explicitly say that full participation is not required, the language of the statute strongly implies it. Caldwell v. Evans, 334 Ga. App. 68, 778 S.E.2d 235 (2015).

Cause of death.

- A wrongful death action could not be maintained in the absence of evidence that the defendant physician's misdiagnosis was the proximate cause of the decedent's death. Dowling v. Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993).

Cited in Carruthers v. City of Hawkinsville, 171 Ga. 313, 155 S.E. 520 (1930); Holloman v. Henry Grady Hotel Co., 42 Ga. App. 347, 156 S.E. 275 (1930); Western & A.R.R. v. Gray, 172 Ga. 286, 157 S.E. 482 (1931); City Ice Delivery Co. v. Turley, 44 Ga. App. 32, 160 S.E. 517 (1931); Georgia R.R. & Banking Co. v. Farmer, 45 Ga. App. 130, 164 S.E. 71 (1932); Western & A.R.R. v. Bennett, 47 Ga. App. 629, 171 S.E. 187 (1933); 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); Edwards v. Southern Ry., 52 Ga. App. 557, 184 S.E. 370 (1936); 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); Maddox v. First Nat'l Bank, 191 Ga. 106, 11 S.E.2d 662 (1940); Atlanta, B. & C.R.R. v. Thomas, 64 Ga. App. 253, 12 S.E.2d 494 (1940); Lewis v. Williams, 78 Ga. App. 494, 51 S.E.2d 532 (1949); Brawner v. Guyton, 81 Ga. App. 583, 59 S.E.2d 539 (1950); Atlantic Coast Line R.R. v. Mims, 199 F.2d 582 (5th Cir. 1952); New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491, 117 S.E.2d 538 (1960); Willitt v. Purvis, 276 F.2d 129 (5th Cir. 1960); Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961); Dunn v. Caylor, 218 Ga. 256, 127 S.E.2d 367 (1962); Hartz v. United States, 415 F.2d 259 (5th Cir. 1969); Walker v. Hall, 226 Ga. 68, 172 S.E.2d 411 (1970); Andrews v. Pollard, 121 Ga. App. 69, 172 S.E.2d 857 (1970); Bulloch County Hosp. Auth. v. Fowler, 227 Ga. 638, 182 S.E.2d 443 (1971); Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 191 S.E.2d 324 (1972); Davis v. Cox, 131 Ga. App. 611, 206 S.E.2d 655 (1974); Stancill v. McKenzie Tank Lines, 497 F.2d 529 (5th Cir. 1974); Janelle v. Seaboard Coast Line R.R., 524 F.2d 1259 (5th Cir. 1975); Ford Motor Co. v. Carter, 239 Ga. 657, 238 S.E.2d 361 (1977); Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977); Lambert v. Allen, 146 Ga. App. 617, 247 S.E.2d 200 (1978); Star Jewelers, Inc. v. Durham, 147 Ga. App. 68, 248 S.E.2d 51 (1978); Self v. Executive Comm. of Ga. Baptist Convention, Inc., 151 Ga. App. 698, 259 S.E.2d 695 (1979); Farahmand v. Local Properties, Inc., 88 F.R.D. 80 (N.D. Ga. 1980); Johnson v. Parrish, 159 Ga. App. 613, 284 S.E.2d 111 (1981); McMahan v. Koppers Co., 654 F.2d 380 (5th Cir. 1981); Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981); Adams v. Wright, 162 Ga. App. 550, 293 S.E.2d 446 (1982); Tolbert v. Murrell, 253 Ga. 566, 322 S.E.2d 487 (1984); Tarver v. Martin, 175 Ga. App. 689, 334 S.E.2d 18 (1985); GMC v. Rasmussen, 255 Ga. 544, 340 S.E.2d 586 (1986); Duffee v. Rader, 178 Ga. App. 517, 344 S.E.2d 258 (1986); Jones v. Jones, 184 Ga. App. 709, 362 S.E.2d 403 (1987); Stegman v. Horton Homes, Inc., 843 F. Supp. 707 (M.D. Ga. 1994); Stegman v. Horton Homes, Inc., 845 F. Supp. 1571 (M.D. Ga. 1994); Williams v. Department of Human Resources, 234 Ga. App. 638, 507 S.E.2d 230 (1998); Williams v. Georgia Dep't of Human Resources, 272 Ga. 624, 532 S.E.2d 401 (2000).

Procedure

Addition of child as party.

- Because an administratrix amended a wrongful death complaint to reflect that such was filed in both a capacity as the administratrix of the decedent's estate and as next friend of the decedent's minor children, and there was a direct connection between the old and new parties, the complaint, as amended, related back to the original complaint; further, because the record showed that the decedent's children reached their majority after the complaint was filed, the trial court did not err in adding them as real parties in interest. Rockdale Health Sys. v. Holder, 280 Ga. App. 298, 640 S.E.2d 52 (2006).

Applicable statute of limitations.

- In a wrongful death action, the Georgia statute of limitations was applicable because it constituted substantive law under Maryland's choice of law rules. Potts v. United Technologies Corp., 879 F. Supp. 1196 (N.D. Ga. 1994).

Lack of jurisdiction to allow exception to statute.

- Intermediate appellate court erred in reversing a trial court's denial of a health care providers' motion for summary judgment in a wrongful death claim; although the trial court lacked jurisdiction to allow an exception to O.C.G.A. § 51-4-2(a) to authorize a guardian to bring the wrongful death claim, Ga. Const. 1983, Art. VI, Sec. I, Para. VIII required that the trial court's ruling be vacated and the case remanded with direction to transfer the case to superior court. Blackmon v. Tenet Healthsystem Spalding, Inc., 284 Ga. 369, 667 S.E.2d 348 (2008).

Conflict of laws.

- Statute conferring right upon widow to recover damages for wrongful death of her husband has no extraterritorial operation, and the courts of this state cannot administer it for the purpose of redressing tortious injuries inflicted in another state. Green v. Johnson, 71 Ga. App. 777, 32 S.E.2d 443 (1944).

Federal statute exclusive remedy for longshoreman's death.

- The federal Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 901 et seq.) fixes and limits the rights of longshoremen or their legal representatives in suits against third persons as well as for claims against their employers, to the exclusion of the remedy provided by this section. Moore v. Christiensen S.S. Co., 53 F.2d 299 (5th Cir. 1931).

Election between federal and state remedies.

- Since the plaintiff had an option of suing one tort-feasor by itself under the Federal Employers' Liability Act or of suing either or both tort-feasors under the state wrongful death law and exercised the former option and recovered thereby, the plaintiff could not then sue the second tort-feasor under the state law. Dixon v. Ross, 94 Ga. App. 187, 94 S.E.2d 86 (1956).

Standing to challenge substitution/addition of plaintiffs.

- Trial court's order permitting a substitution and addition of the plaintiffs in a medical malpractice case following the deaths of the named plaintiffs was affirmed because the defendant lacked standing to complain that fewer than all of the decedent's surviving children were named plaintiffs under O.C.G.A. § 51-4-2. Caldwell v. Evans, 334 Ga. App. 68, 778 S.E.2d 235 (2015).

Lack of standing.

- Trial court properly granted the plaintiffs' motion to add and substitute parties in a wrongful death action because the defendant lacked standing to complain that fewer than all of the surviving children were named plaintiffs under O.C.G.A. § 51-4-2. Caldwell v. Evans, 334 Ga. App. 68, 778 S.E.2d 235 (Oct. 1, 2015).

Wife acts both as individual and representative of children.

- Although the statute confers exclusive standing upon the surviving spouse, it does not vest in the spouse all of the rights to the claim since the spouse is required to share the proceeds with the children. This means the spouse acts not solely as an independent party but rather as an individual and as the representative of the children. Mack v. Moore, 256 Ga. 138, 345 S.E.2d 338 (1986).

Children have no separate or joint cause of action while widow survives.

- Under the statutes, if their is a surviving widow, the right of action is vested in her, and she alone may bring the suit; and this is not altered by the provision that the children shall share in the recovery. Bloodworth v. Jones, 191 Ga. 193, 11 S.E.2d 658, answer conformed to, 63 Ga. App. 748, 12 S.E.2d 111 (1940).

When the death of a husband and father is caused by alleged negligence of another person, the right of action to recover for the homicide is in the surviving widow, and one standing in loco parentis to the surviving children, to whom the widow has relinquished parental control, may not sue for their benefit to recover for the homicide of their father, even though the widow may waive and renounce her right in favor of the children, may elect to permit the person to whom she has relinquished parental control to proceed for their benefit, and may herself fail and refuse to bring the action. Bloodworth v. Jones, 191 Ga. 193, 11 S.E.2d 658, answer conformed to, 63 Ga. App. 748, 12 S.E.2d 111 (1940).

This section makes no provision for the children of a deceased father to institute an action for his wrongful homicide while the widow of the deceased is still in life. Odom v. Atlanta & W.P.R.R., 78 Ga. App. 477, 51 S.E.2d 466 (1949).

This section makes no provision for the children of a deceased father to institute an action for his wrongful homicide while the widow of the deceased is still in life. Odom v. Atlanta & W.P.R.R., 208 Ga. 45, 64 S.E.2d 889 (1951).

This section cannot be construed to vest in the children, jointly with the widow or separately, the right to sue for the recovery of damages for the death of their father so long as the widow survives. Western & A.R.R. v. Davis, 116 Ga. App. 831, 159 S.E.2d 134 (1967).

This section gives a right of action to the children only in the event there is no widow; if there be a widow, the right to sue is vested in her and not in the children, or jointly in her and the children. Western & A.R.R. v. Davis, 116 Ga. App. 831, 159 S.E.2d 134 (1967).

As long as widow is alive, only she may bring action; and even if she fails and refuses, children may not act through a next friend. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 191 S.E.2d 324 (1972).

This section gives a right of action to the children only in the event there is no widow. Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979).

So long as there is a surviving widow, the right of action under this section is in her and no action by the children may be brought. Lambert v. Allen, 146 Ga. App. 617, 247 S.E.2d 200 (1978).

Decedent's children and sister lacked standing because surviving spouse was proceeding with wrongful death action.

- Under O.C.G.A. § 51-4-2(a), a surviving spouse could bring a wrongful death action against drug manufacturers with respect to her husband's death, but when the surviving spouse was proceeding with the action, the decedent's children and sister did not have standing. Moore v. Mylan Inc., F. Supp. 2d (N.D. Ga. Jan. 5, 2012).

Suit by child when widow fails to bring action.

- A minor child may bring an action for wrongful death of his mother when his stepfather left the state shortly after the deceased's death with no intention of pursuing a wrongful death action. Emory Univ. v. Dorsey, 207 Ga. App. 808, 429 S.E.2d 307 (1993).

Rule applies even if widow's refusal to sue fraudulent.

- The cause of action for wrongful death of a husband vests in the widow and the children have no right to sue so long as the widow is in life even if the widow's refusal to bring the suit is fraudulent. Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978).

Administrator of deceased wife is not proper party to proceed with suit for death of husband unless there are no living children of deceased. Campbell v. Western & A.R.R., 57 Ga. App. 209, 194 S.E. 927 (1938).

When the administrator of the deceased wife appeared and was made a party to the suit for the husband's death and the defendant subsequently made a motion to dismiss the suit because the administrator had not shown that there were no children of the deceased to whom the action would survive, and when upon the hearing of this motion it appeared that there were children of the deceased father to whom the action should survive, the proper procedure would have been for the trial judge not to have dismissed the petition, but to refuse to allow the suit to proceed at the instance of such administrator, and to thereupon issue a rule calling on such children to show cause on the named day why they should not be made parties thereto, and in default thereof the petition be dismissed. Campbell v. Western & A.R.R., 57 Ga. App. 209, 194 S.E. 927 (1938).

Since the wife's action for the husband's death survives to the administrator of the deceased plaintiff, being charged with the duty of prosecuting the pending action of the deceased, the administrator should, voluntarily and on the administrator's own motion, appear before the court and be made a party thereto, which should be done by an order of the court and not an amendment of the petition striking the deceased's name therefrom, and in default of doing so within a reasonable time the case may be dismissed for want of prosecution. Campbell v. Western & A.R.R., 57 Ga. App. 209, 194 S.E. 927 (1938).

No action for death of one standing in loco parentis.

- When the plaintiff's father died when the plaintiff was four years of age, and the plaintiff's mother died about one year later, on her deathbed relinquishing to her daughter, the plaintiff's older sister, all right to the custody, control, and services of the petitioner in consideration of that daughter agreeing to accept custody of the petitioner and to maintain and educate the petitioner until he was 21 years of age, and in all respects to stand in loco parentis to the petitioner which the plaintiff's sister did until her death, nevertheless since the plaintiff's sister met her death because of the negligence of the defendant, the petition in which the plaintiff sought recovery of the defendant was properly dismissed on general demurrer (now motion to dismiss). Weems v. Saul, 52 Ga. App. 470, 183 S.E. 661 (1936).

When a woman 36 years of age entered the home of her married sister and her sister's husband, under a contract by the terms of which she was to work for and help them as though she was one of the family, and they were to maintain and support her, and "adopt her as their adopted daughter, and make her one of the family and an heir to their estate," and when the contract was performed on both sides so long as the married sister and her husband lived, the person who thus assumed by contract the relation of a child had no cause of action for the negligent homicide of her sister and brother-in-law, either under the wrongful death statute, providing for suit, in certain circumstances, by a child for the homicide of its parent, or upon the theory that she (the claimant) had sustained actual loss and damage in being deprived of the support which the decedents had furnished and were bound to furnish to her under the contract referred to. Avery v. Southern Ry., 44 Ga. App. 613, 162 S.E. 648 (1931).

Nursing home was not entitled to compel arbitration of a wrongful death suit because the plaintiff, the decedent's child, did not have the decedent's power of attorney or the decedent's express or implied consent to sign the arbitration agreement on the decedent's behalf; the child, by signing the agreement, did not express an intent to surrender any of the child's own rights; and the child was not estopped by signing it from pursuing a wrongful death claim in the child's individual capacity. Hogsett v. Parkwood Nursing & Rehab. Ctr., Inc., F. Supp. 2d (N.D. Ga. Feb. 14, 2014).

Compelling arbitration of beneficiaries wrongful death claim was error.

- Although litigation of any tort claims by the decedent's estate against the defendants was barred by the arbitration agreement, the trial court's order compelling arbitration of the beneficiaries' wrongful death claim against a nursing home and its owners/operators (defendants) was error because litigation of the wrongful death claims asserted by the beneficiaries was not barred. Norton v. United Health Services of Georgia, Inc., 336 Ga. App. 51, 783 S.E.2d 437 (2016).

Guardian's approval of settlement held not required.

- Court, in approving settlement of wrongful death action brought by surviving spouse, was not required to secure the approval of the guardian of the decedent's minor child. Morris v. Clark, 189 Ga. App. 228, 375 S.E.2d 616 (1989).

Settlement with one or more beneficiaries does not bar any others from proceeding with wrongful death action.

- The settling tortfeasor is deemed to have waived the rule against splitting a cause of action. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 191 S.E.2d 324 (1972).

If widow receives adverse determination on release issue, she will remain as her children's representative, and indeed, could not appear as next friend. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 191 S.E.2d 324 (1972).

Fruits of recovery under this section are not part of decedent's estate and are not subject to any debt or liability of any character of deceased. They belong to the widow and the children of the deceased, both minors and adults, whether they were dependent upon the deceased or not, and are distributable according to the law of descents. Vickers v. Vickers, 210 Ga. 488, 80 S.E.2d 817 (1954).

Health plan fiduciary met its burden for obtaining a preliminary injunction under Fed. R. Civ. P. 65 and 29 U.S.C. § 1132(a)(3) of ERISA as to a portion of a medical malpractice settlement allocated to claims of the estate under O.C.G.A. § 51-4-5(b) for individual medical bills, but fiduciary was not entitled to a portion of the settlement allocated to the decedent's daughter for a wrongful death claim under O.C.G.A. § 51-4-2(a) because the claim belonged to the daughter and not to the estate and wrongful death statute was not preempted by 29 U.S.C. § 1144(a) of ERISA in that the statute did not sufficiently "relate to" the ERISA plan. Diamond Crystal Brands, Inc. v. Wallace, 531 F. Supp. 2d 1366 (N.D. Ga. 2008).

All children necessary parties in suit by children to recover full value of father's life.

- When a wrongful death claim seeks recovery for the full value of the life of the father, and whether or not the children may have a separate cause of action for their share, are necessary parties for any action asserting the right to recover the full value of the life of the father. Gordon v. Gillespie, 135 Ga. App. 369, 217 S.E.2d 628 (1975).

Petition defective when other children refuse to join.

- Petition brought by some of the children for the negligent homicide of their father is defective when the only reason given for the failure of the other children to join in the suit is that the children refuse to join. Pollard v. Reid, 56 Ga. App. 594, 193 S.E. 370 (1937).

Fact that one party not entitled to recovery not a bar to suit by other children.

- Each beneficiary has a separate cause of action for the death of a husband and father. The fact that one of them will not be entitled to damages (e.g., his negligence caused the death) does not bar the others from bringing suit for a proportional part of the value of the life. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516, 191 S.E.2d 324 (1972).

When one of parties entitled to join in action dies before commencement of action, provisions relating to survival in subsection (b) manifestly do not apply, but the restrictions requiring joint action do apply. Hood v. Southern Ry., 169 Ga. 158, 149 S.E. 898 (1929).

Res judicata.

- A recovery by an administrator for personal injuries to the plaintiff's deceased husband is not a bar to an action under this section. Spradlin v. Georgia Ry. & Elec. Co., 139 Ga. 575, 77 S.E. 799 (1913).

Plea of adultery in defense.

- When the defendant pleads that the homicide resulted after the deceased has debauched the former's daughter, an urgent danger of a new act of adultery must be proved. Putnam v. Taylor, 21 Ga. App. 537, 94 S.E. 862 (1918).

Marital problems as defense.

- When in the opening statement, the plaintiff's attorney said that the deceased and her husband had "been together since 1963," the court did not abuse the court's discretion in allowing testimony of the simple fact that there was a period of time the two were separated. Cornelius v. Macon-Bibb County Hosp. Auth., 243 Ga. App. 480, 533 S.E.2d 420 (2000).

Right of child to portion of wrongful death settlement.

- When a child's mother received a wrongful death settlement from the death of the child's father, she was obligated to set aside a portion of the amount for the child. Warnock v. Davis, 267 Ga. 336, 478 S.E.2d 124 (1996).

Wrongful death claim for intentional termination of patient's life support tolled due to infancy of patient's child.

- Two year statute of limitations for wrongful death applied to a suit alleging tortious termination of life support of a parent and that limitations period was tolled based on the infancy of the parent's child, who was born to the parent prior to the defendant terminating the parent's life support. 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).

Sharing of proceeds from recovery.

- Due process does not require that a surviving spouse be given notice of one's statutory duty to share the proceeds from a wrongful death recovery with the decedent's children. Harris v. Boyd, 193 Ga. App. 467, 388 S.E.2d 60 (1989).

Fiduciary duty in allocating settlement proceeds.

- When the surviving spouse acted in different capacities -- as the children's representative, as executrix of the estate and in her own interest for loss of consortium -- the question whether she breached her fiduciary duty to the children in allocating settlement proceeds was for the jury. Home Ins. Co. v. Wynn, 229 Ga. App. 220, 493 S.E.2d 622 (1997).

When the parties entered into a High-Low settlement agreement that was silent as to how the funds should be allocated between the wrongful death claim and the claims of the decedent's estate, the decedent's wife, who was also the administrator of the decedent's estate, acted in contravention of the wife's fiduciary duties to the children by arguing that none of the settlement funds should be allocated to the wrongful death claim, and the trial court erred by failing to allocate any of the settlement funds to the wrongful death claim because the trial court was not allowed to consider the decedent's wishes in apportioning the claims as the children had an absolute right to share in any recovery on that claim. Leanhart v. Knox, 351 Ga. App. 268, 830 S.E.2d 545 (2019).

Tolling of statute of limitations for minor child.

- Georgia Supreme Court upheld a $2.5 million wrongful death judgment because both the Court and the Georgia Court of Appeals have allowed other persons acting in a representative capacity to maintain a wrongful death action on behalf of a minor child when the surviving spouse declined to pursue the claim. Rai v. Reid, 294 Ga. 270, 751 S.E.2d 821 (2013).

Official immunity improper in wrongful death action.

- 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).

Wrongful Death of Spouse

Deceased spouse being co-beneficiary of household services not discounted.

- 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 federal civil rights action arising from death of husband at hands of police officers, the widow may recover the full value of the deceased's life. McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983), appeal dismissed, 724 F.2d 881 (11th Cir. 1984).

Under federal law, the decedent's surviving spouse entitled to decedent's medical records.

- A nursing home was obliged to release a decedent's medical records to the decedent's surviving spouse who was pursuing a wrongful death action, since under O.C.G.A. §§ 31-33-2(a)(2)(B) and51-4-2, the spouse was authorized to access those records and the trial court's order requiring the release of the records complied with the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. Alvista Healthcare Ctr., Inc. v. Miller, 296 Ga. App. 133, 673 S.E.2d 637 (2009).

Word "widow" is used to identify person who was wife of deceased at his death and not to designate one according to her relationship to the children, and is not used in the sense of "mother." Odom v. Atlanta & W.P.R.R., 78 Ga. App. 477, 51 S.E.2d 466 (1949).

Common-law wife.

- If decedent were survived by a common-law wife, then she, rather than his children, had exclusive standing to bring the wrongful death action. Georgia Osteopathic Hosp. v. O'Neal, 198 Ga. App. 770, 403 S.E.2d 235 (1991).

This section vests right of action in case of wrongful death of husband and father in the widow, to be held by her subject to the law of descents, as if it were personal property descending to the widow and children from the deceased. Dixon v. Ross, 94 Ga. App. 187, 94 S.E.2d 86 (1956).

Effect of separation or subsequent marriage.

- Separation of the husband and wife before the action arose is no defense. Nor is the right divested by a subsequent remarriage. Georgia R.R. & Banking Co. v. Garr, 57 Ga. 277 (1876); Central of Ga. Ry. v. Bond, 111 Ga. 13, 36 S.E. 299 (1900).

Recovery by widow for homicide of husband.

- A widow has a right of recovery when the husband, had he lived, would have a right of action. Western & A.R.R. v. Strong, 52 Ga. 461 (1874).

Each of the beneficiaries specified by this section has cause of action which mother, if in life, asserts by action for all of them. Walden v. Coleman, 217 Ga. 599, 124 S.E.2d 265 (1962); Travelers Ins. Co. v. Houck, 118 Ga. App. 154, 162 S.E.2d 781 (1968); Davis v. Cox, 131 Ga. App. 611, 206 S.E.2d 655 (1974).

When wife sues for homicide of her husband, and during pendency thereof dies, action survives to children of the deceased if any be in life. In such a case, if there be no children, the action survives "to the personal representative of the deceased plaintiff." Campbell v. Western & A.R.R., 57 Ga. App. 209, 194 S.E. 927 (1938).

Death of widow temporarily suspends suit for wrongful death of husband.

- Upon the death of a wife suing for the homicide of her husband, the suit does not abate but is suspended. However, nothing further can properly be done in the action until the person or persons in whose favor the action survives is brought or voluntarily appears before the court by proper proceedings. Campbell v. Western & A.R.R., 57 Ga. App. 209, 194 S.E. 927 (1938).

Even if there were a will, recovery under this section is no part of estate of deceased, and widow holds the estate subject to law of descents. Boggan v. Boggan, 145 Ga. App. 401, 243 S.E.2d 664 (1978).

Surviving spouse must bring claim if alive.

- Plaintiffs' motion to add the decedent's widow as a plaintiff in the wrongful death action was improperly denied as the plaintiff's motion met the relation-back requirements because the proposed amendment would not have altered the substance of the wrongful death claim or changed the underlying circumstances set forth in the original complaint; the widow's claim clearly arose out of the same occurrence as that alleged in the original complaint; there was no evidence of prejudice to the defendants or dilatory tactics by the plaintiffs as the original complaint was filed within the applicable statute of limitation; and, although the widow initially did not want to participate in the lawsuit, later the widow's mind was changed. Seay v. Valdosta Kidney Clinic, LLC, 353 Ga. App. 378, 837 S.E.2d 529 (2020).

Fund recovered by widow for damages for homicide of her husband, was not by reason of this section, exempt from process of garnishment for payment of widow's individual debt in a suit against the widow. Hamilton v. Hardwick, 47 Ga. App. 513, 170 S.E. 826 (1933).

Parent of decedent.

- An adult decedent's parent did not have standing to bring a wrongful death claim under O.C.G.A. § 51-4-2, as a surviving spouse had exclusive standing to bring a wrongful death action; although an exception applied in the context of a superior court exercising its constitutionally granted powers of equity, the parent had brought the action in state court, which did not have such equitable powers. Blackmon v. Tenet Healthsystem Spalding, Inc., 288 Ga. App. 137, 653 S.E.2d 333 (2007), rev'd on other grounds, 284 Ga. 369, 667 S.E.2d 348 (2008).

Suicide is defense.

- When a husband committed suicide, after receipt of a written notice to him to resign his position in a corporation, no recovery was allowed. Stevens v. Steadman, 140 Ga. 680, 79 S.E. 564, 17 L.R.A. (n.s.) 1009 (1913).

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).

Effect of settling prior personal injury action for spouse in perpetual coma.

- 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).

Decedent's spouse had authority to settle claims.

- Decedent's wife, as the surviving spouse, was the proper party to seek damages for the decedent's wrongful death and, as the administrator of the decedent's estate, damages for the decedent's shock, fright and terror prior to the collision, all components of the mental pain and suffering endured by the decedent upon impact up until the decedent's death, and funeral and burial expenses, and the wife had the authority to settle or compromise the claims without any input from the decedent's children. Leanhart v. Knox, 351 Ga. App. 268, 830 S.E.2d 545 (2019).

Wrongful death of child

Word "child" or "children" as used in this section means legitimate child or children. Adams v. Powell, 67 Ga. App. 460, 21 S.E.2d 111 (1942).

Words "child or children" may include either legitimate or illegitimate children.

- If there is no widow, subsection (a) of O.C.G.A. § 51-4-2allows recovery for the wrongful death of a father by a child or children, proven to be such, whether legitimate or illegitimate. Edenfield v. Jackson, 251 Ga. 491, 306 S.E.2d 911 (1983).

Son's right to bring action.

- Under the plain language of O.C.G.A. § 51-4-2(a), the decedent's son had the right to bring a wrongful death action for the father's death and a wrongful death claim brought by the administrator of the decedent's estate was properly dismissed. King v. Goodwin, 277 Ga. App. 188, 626 S.E.2d 165 (2006).

Attorney-client relationships with children.

- An attorney representing the surviving spouse who was prosecuting not only her own interests, but also the children's interests in a wrongful death action, had an attorney-client relationship with the children. Home Ins. Co. v. Wynn, 229 Ga. App. 220, 493 S.E.2d 622 (1997).

Administratrix of estate was not proper party to bring wrongful death action for surviving illegitimate child; however, the defect of failure of the proper party to bring the action was cured by a post-verdict amendment naming as an additional party plaintiff the minor child "b/n/f Monica Williams" which effectively changed the administratrix to next friend of the decedent's minor child. Weldon v. Williams, 170 Ga. App. 589, 317 S.E.2d 570 (1984).

Children born of void marriage not annulled by court not barred from suit.

- Children born of a marriage which was void because their mother had wedded their father without obtaining a divorce from her surviving spouse but which had not been annulled by a competent court are entitled to sue as the plaintiffs for the tortious homicide of their father. Andrews v. Willis, 133 Ga. App. 697, 212 S.E.2d 24 (1975).

Suit by posthumous child born out of wedlock.

- Decedent's posthumous, out-of-wedlock child was entitled to pursue a wrongful death claim under O.C.G.A. § 51-4-2 to the exclusion of the decedent's parents. Under the statute pertaining to descent and distribution, O.C.G.A. § 53-2-1(a)(1), the posthumous child qualified as the decedent's child, and to ignore the laws of descent and distribution would run counter to the essence of a wrongful death claim; simply because the decedent's parents wished to share in any award did not render an inequitable result in light of the priority ordinarily given to children by O.C.G.A. § 19-7-1(c)(2). deVente v. Flora, 300 Ga. App. 10, 684 S.E.2d 91 (2009).

When the state Workers' Compensation Law is not applicable, natural children have rights to recover damages for death of their parents. U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. 102, 143 S.E.2d 663 (1965).

Child may maintain action at law for recovery of share of damages recovered by a widow. Griffith v. Griffith, 128 Ga. 371, 57 S.E. 698 (1907).

Negligence of surviving spouse does not bar children's recovery.

- A verdict may be returned for the surviving spouse as the representative of the decedent's child, even though the surviving spouse's negligence was equal to or greater than the defendant's negligence. Matthews v. Douberley, 207 Ga. App. 578, 428 S.E.2d 588 (1993).

Rights of minor children abandoned by surviving spouse.

- Since the surviving spouse had abandoned his minor children and could not be found, the factual circumstances demanded the exercise of the court's equitable powers to preserve the rights of the minor children. The trial court should have allowed the minors, who had no remedy at law, to maintain an action for the wrongful death of their mother. Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 403 S.E.2d 806 (1991).

Surviving children have action for homicide of their father, upon death of mother. City of Elberton v. Thornton, 138 Ga. 776, 76 S.E. 62 (1912).

Dependency upon parent is not now necessary element for recovery in wrongful death action. Limbaugh v. Woodall, 121 Ga. App. 638, 175 S.E.2d 135 (1970).

Exclusion of dependency as prerequisite.

- It was the purpose of Act respecting recovery for the homicide of a parent to exclude dependency as a prerequisite essential to a child's right to recover and the question whether the child is dependent upon such parent in any respect is wholly immaterial. Vickers v. Vickers, 210 Ga. 488, 80 S.E.2d 817 (1954).

Child could sue for negligent homicide of the child's natural father under this section although adopted by aunt and in such cases no dependency is required to be shown. New Amsterdam Cas. Co. v. Freeland, 101 Ga. App. 754, 115 S.E.2d 443 (1960), rev'd on other grounds, 216 Ga. 491, 117 S.E.2d 538 (1960).

When a minor child born in lawful wedlock and having a living father, but no mother, was legally adopted by the child's aunt, and since the minor continued to live with the aunt as her adopted child, and since while so living the child's natural father was killed, the minor, at the time of the death of the child's natural father, was the "child" of the decedent within the meaning of this section. Macon, D. & S.R.R. v. Porter, 195 Ga. 40, 22 S.E.2d 818 (1942).

This section cannot be read to mean that child who has two parental relationships at same point in time, may bring wrongful death actions on either. Limbaugh v. Woodall, 121 Ga. App. 638, 175 S.E.2d 135 (1970).

Relation of parent and child does not arise from virtual adoption. Limbaugh v. Woodall, 121 Ga. App. 638, 175 S.E.2d 135 (1970).

One cannot be legally or statutorily adopted by another after latter is deceased. Limbaugh v. Woodall, 121 Ga. App. 638, 175 S.E.2d 135 (1970).

Sibling of decedent allowed to amend complaint.

- Decedent's sibling, as the purported representative of the decedent's spouse, filed a wrongful death suit against medical providers within five years of the alleged negligent acts and, within a reasonable time after the providers objected to the sibling's standing, filed a motion to amend the complaint to name the decedent's spouse as the real party in interest. As the proposed amendment did not "initiate" a new claim, the medical malpractice statute of repose, O.C.G.A. § 9-3-71(b), did not prevent amendment of the complaint even though the motion to amend was filed more than five years after the alleged negligence. Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861 (2008).

Descendant of a child who predeceased a parent was not entitled to recover in a wrongful death action filed by the deceased parent's surviving children. Tolbert v. Maner, 271 Ga. 207, 518 S.E.2d 423 (1999).

Recovery by parent of deceased when murdered by spouse.

- After the Georgia Supreme Court concluded that because the police officer, as the son's wife and murderer, was precluded from recovery, the son's mother had standing to assert claims for her son's wrongful death and funeral expenses under Georgia law; therefore, the district court erred by dismissing the mother's state law claims. Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003).

Stepparents

Child had no right of action for homicide of a stepparent, even though the child depended on the stepparent for support and the latter stood "in loco parentis" to the child. Marshall v. Macon Sash, Door & Lumber Co., 103 Ga. 725, 30 S.E. 571 (1898); Weems v. Saul, 52 Ga. App. 470, 183 S.E. 661 (1936).

Rights created by this section are not taken away when natural parents are divorced and child has stepparent or stepparents. U.S. Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102, 143 S.E.2d 663 (1965).

There is no right of any kind for children of widow who are stepchildren of deceased to participate in recovery under this section. St. Paul Fire & Marine Ins. Co. v. Miniweather, 119 Ga. App. 617, 168 S.E.2d 341 (1969).

Decisions Under Former § 51-4-3 Editor's notes.

- Annotations to former § 51-4-3, relating to actions for the wrongful death of a wife or spouse, appear below inasmuch as this Code section (as a result of the 1985 amendment) now appears to govern those causes of action (decided under former Code 1933, § 105-1306).

Since the former statute gave a right of action not had under common law, it must be limited strictly to meaning of language employed and not extended beyond the statute's plain and explicit terms. Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838 (1974);(decided under former Code 1933, § 105-1306).

Child or children as used in former Code 1933, § 105-1306 has the same meaning as shown by former Code 1933, §§ 105-1302, 105-1303, 105-1304, and 105-1305 (see now O.C.G.A. § 51-4-2). Lewis v. Williams, 78 Ga. App. 494, 51 S.E.2d 532 (1949);(decided under former Code 1933, § 105-1306).

Virtual adoption.

- After a woman 36 years of age entered the home of her married sister and her sister's husband, under a contract by the terms of which she was to work for and help them as though she was one of the family, and they were to maintain and support her, and "adopt her as their adopted daughter, and make her one of the family and an heir to their estate," and since the contract was performed on both sides so long as the married sister and her husband lived, the person who thus assumed by contract the relation of a child had no cause of action for the negligent homicide of her sister and brother-in-law, either under former § 51-4-3 providing for suit, in certain circumstances, by a child for the homicide of its parent, or upon the theory that she (the claimant) had sustained actual loss and damage in being deprived of the support which the decedents had furnished and were bound to furnish to her under the contract referred to. Avery v. Southern Ry., 44 Ga. App. 613, 162 S.E. 648 (1931);(decided under former Civil Code 1910, § 4424).

Gist of wrongful death action is not injury suffered by deceased, but injury suffered by beneficiaries, resulting from death of the deceased. Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838 (1974);(decided under former Code 1933, § 105-1306).

Cause of action in wrongful death action, while dependent upon fact of actionable tort against deceased, accrues only by reason of death. Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838 (1974);(decided under former Code 1933, § 105-1306).

Right of action accrues at time of death of wife from injuries inflicted, not at the time injuries were inflicted. Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838 (1974);(decided under former Code 1933, § 105-1306).

Nothing in language of the former statute stated or implied that husband must be married to wife at time injuries are inflicted. Lovett v. Garvin, 232 Ga. 747, 208 S.E.2d 838 (1974);(decided under former Code 1933, § 105-1306).

General Assembly did not intend to authorize action by child against his father for wrongful death of his mother, but intended to authorize an action only against third persons other than the father. Harrell v. Gardner, 115 Ga. App. 171, 154 S.E.2d 265 (1967);(decided under former Code 1933, § 105-1306).

Former statute did not authorize child to bring action for wrongful death of his mother against estate of his stepfather, since the mother, had she been in life, would have had no right of action against her husband for injuries received. Horton v. Brown, 117 Ga. App. 47, 159 S.E.2d 489 (1967); Jones v. Swett, 244 Ga. 715, 261 S.E.2d 610 (1979);(decided under former Code 1933, § 105-1306).

When a child's stepfather, if living, must be joined as a party plaintiff in a suit for the death of the mother, he cannot be a plaintiff and defendant in the same action, and thus no cause of action arises against him as being responsible for the mother's death, and none survives as against his personal representative. Wrinkle v. Rampley, 97 Ga. App. 453, 103 S.E.2d 435 (1958);(decided under former Code 1933, § 105-1306).

When homicide is that of mother who leaves husband and child or children, the right of action given to husband and children is joint. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

Since the statute declares that the husband and children should sue jointly and not separately, it is in that sense that it is spoken of as a joint cause of action, or a joint right of action. It is a joint right to bring the suit; that right, if it be exercised at all, to be by all of them who survived her. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

Former statute itself did not describe the right of action for wrongful death as a joint cause of action. It merely declares that the plaintiffs shall sue jointly and not separately. Therefore, if the deceased left a husband and children, or a husband and child, or children and no husband, an action for her death could not be maintained unless the husband, in the event she left a husband and all the children surviving her, were named as plaintiffs in the action. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

Cause of action is jointly given to the husband and children surviving at the time action is brought, irrespective of the age of the children and questions of dependency and contribution. In the event of a recovery they are entitled jointly to the full value of the life of the deceased as shown by the evidence. Lewis v. Williams, 78 Ga. App. 494, 51 S.E.2d 532 (1949);(decided under former Code 1933, § 105-1306).

Minor children residing with their father cannot maintain independent and separate suit for the negligent homicide of their mother. Denham v. Texas Co., 19 Ga. App. 662, 91 S.E. 1070 (1917);(decided under former Civil Code 1910, § 4424).

When the father is living, child or children cannot sue for death of mother without making husband party plaintiff. Wrinkle v. Rampley, 97 Ga. App. 453, 103 S.E.2d 435 (1958);(decided under former Code 1933, § 105-1306).

For possibly conflicting trends regarding the joint nature of husband's and children's rights of action for wrongful death, see Hood v. Southern Ry., 169 Ga. 158, 149 S.E. 898 (1929); Jones v. Seaboard Air Line Ry., 44 Ga. App. 604, 162 S.E. 305 (1932); Watson v. Thompson, 185 Ga. 402, 195 S.E. 190, answer conformed to, 58 Ga. App. 177, 198 S.E. 116 (1938);(decided under former Civil Code 1910, § 4424 and former Code 1933, § 105-1306).

For case which interprets Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941), as allowing each beneficiary separate cause of action, see Walden v. Coleman, 217 Ga. 599, 124 S.E.2d 265 (1962);(decided under former Code 1933, § 105-1306).

Action may proceed without joinder of all children.

- Because former O.C.G.A.51-4-3 expressly provided for prosecution of the suit by fewer than all of the children, and requires only that the children be served so that the children may intervene in the case as an additional plaintiff at any time before final judgment, the logical conclusion is that the action could continue without a particular child's participation. American Erectors, Inc. v. Hanie, 157 Ga. App. 687, 278 S.E.2d 196 (1981);(decided under former Code 1933, § 105-1306).

Necessary parties to suit may be joined after period of limitations has run.

- When original petition for homicide of wife and mother, although not brought in the names of all parties plaintiff, was brought within the period of limitations for the institution of the suit, the suit was not barred by the statute of limitations because of a failure within the period of the statute to make all the children (necessary parties) parties plaintiff; and an amendment to the petition adding an additional child as plaintiff who was a necessary party, made after the period of the statute of limitations, related to the bringing of the suit, so that the suit stood as if it were originally brought in the name of all the parties and within the period of the statute of limitations. Wallace v. Brannen, 56 Ga. App. 856, 193 S.E. 901 (1937);(decided under former Code 1933, § 105-1306).

When a husband brings suit for the wrongful death of his deceased wife before the statute of limitations has run, the children of the deceased wife may be added by amendment after the expiration of the period of the statute of limitations because the amendment relates back to the bringing of the suit. Southern Ry. v. Waldrup, 76 Ga. App. 356, 45 S.E.2d 775 (1947);(decided under former Code 1933, § 105-1306).

Effect of contributory negligence by plaintiff-husband.

- The right of a husband and children to recover for the homicide of the wife must be determined in part by the rule which in effect declares that no plaintiff can recover when the plaintiff's own negligence contributes to the injury or exceeds that of the defendant. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

One whose negligence has brought about a calamity to one whom the former is legally bound to watch over and protect from injury cannot be allowed to profit by the results of the former's own inexcusable, if not criminal, neglect and misconduct. The object of this rule is not to shield a negligent defendant from the penalty of wrongdoing, but merely to deny aid to a plaintiff who, though equally guilty, nevertheless comes into a court of justice and demands the fruits of the plaintiff's own unpardonable neglect of both moral and a legal duty. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

If the husband be negligent, but his negligence is less than that of the defendant charged with the homicide of the wife, he should be permitted a recovery, but when there is a child, his part thereof should be less than one half the value of the wife's life, reduced by a sum proportioned to the amount of fault attributable to him, with the further proviso that if by the exercise of ordinary care he could have avoided the consequences caused by the defendant, he is not entitled to recover at all. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

Child's right to recover is not derived from father, and negligence of father does not deprive child of right to recover. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

Negligence of one beneficiary cannot be charged against another. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941);(decided under former Code 1933, § 105-1306).

Dependency not required.

- A child may recover for the homicide of his mother (the mother leaving no husband or other children) without showing that he was dependent upon her and that she contributed to his support. Petty v. Louisville & N.R.R., 39 Ga. App. 689, 148 S.E. 308 (1929);(decided under former Civil Code 1910, § 4424).

Dependency upon a parent is not now a necessary element for recovery in a wrongful death action. Limbaugh v. Woodall, 121 Ga. App. 638, 175 S.E.2d 135 (1970);(decided under former Code 1933, § 105-1306).

Cause of action for wrongful death which is available to husband and child or children surviving wife is separate and distinct cause of action from that of wife for her pain and suffering. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208 (1958);(decided under former Code 1933, § 105-1306).

A husband's suit for wrongful death of his wife is not part of the same cause of action as his suit as administrator for his wife's pain and suffering and her medical, hospital, and funeral expenses so as to raise the issue of res judicata. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967);(decided under former Code 1933, § 105-1306).

Wife's administrator may sue separately for pain and suffering.

- Prior recovery on behalf of husband and minor children from the party causing the death of the wife for the full value of the life of the wife does not constitute a bar to a subsequent action by the administrator of the wife's estate against the same party to recover for her pain and suffering. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208 (1958);(decided under former Code 1933, § 105-1306).

Action to recover for death of wife and mother is separate cause of action from action to recover for death of child. Forrester v. Southern Ry., 268 F. Supp. 194 (N.D. Ga. 1967);(decided under former Code 1933, § 105-1306).

Pleas of res judicata or of estoppel by judgment are available in connection with actions under this section when requirements of pleas are made to appear. Smith v. Wood, 115 Ga. App. 265, 154 S.E.2d 646 (1967);(decided under former Code 1933, § 105-1306).

Jury instruction.

- The trial judge erred in charging the jury that before the plaintiff could recover the plaintiff must prove that the plaintiff was dependent upon the plaintiff's deceased mother and that she contributed to the plaintiff's support. However, that error was cured by a subsequent charge which informed the jury of the court's error and gave the correct law on the subject. Petty v. Louisville & N.R.R., 39 Ga. App. 689, 148 S.E. 308 (1929);(decided under former Civil Code 1910, § 4424).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22A Am. Jur. 2d, Death, §§ 72 et seq., 274 et seq.

41 Am. Jur. 2d, Husband and Wife, § 196 et seq, 242.

C.J.S.

- 25A C.J.S., Death, §§ 23, 74 et seq., 124 et seq.

ALR.

- Damages for wrongful death of spouse as affected by personal relations of the spouses, or the marital misconduct of either spouse, 18 A.L.R. 1409; 90 A.L.R. 920.

Recovery under common law or state death statute where cause of action under Federal Employers' Liability Act fails for want of proof that deceased or injured person was an employee of defendant, 66 A.L.R. 429.

Right to maintain death action where sole beneficiary of recovery is wife of defendant, 96 A.L.R. 479.

Effect of existence of nearer related but nondependent member upon right to sue under death statute in behalf of more remotely related but dependent member of same class, 162 A.L.R. 704.

Common-law recovery of funeral expenses from tort-feasor by husband, wife, or other relative of deceased, 3 A.L.R.2d 932.

Action against spouse or estate for causing death of other spouse, 28 A.L.R.2d 662.

Child adopted by another as beneficiary of action or settlement for wrongful death of natural parent, 67 A.L.R.2d 745.

Right of recovery, under wrongful death statute, for benefit of illegitimate child or children of decedent, 72 A.L.R.2d 1235.

Admissibility, in wrongful death action brought for benefit of minor children, of evidence of decedent's desertion, nonsupport, abandonment, or the like, of said children, 79 A.L.R.2d 819.

Remarriage of surviving spouse, or possibility thereof, as affecting action for wrongful death of deceased spouse, 87 A.L.R.2d 252; 88 A.L.R.3d 926.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child, 94 A.L.R.2d 1237; 97 A.L.R.3d 347.

Wife's right of action for loss of consortium, 36 A.L.R.3d 900.

Death action by or in favor of parent against unemancipated child, 62 A.L.R.3d 1299.

Action for death of stepparent by or for benefit of stepchild, 68 A.L.R.3d 1220.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046.

Right of illegitimate child, after Levy v. Louisiana, to recover under state wrongful death statute for death of putative father, 78 A.L.R.3d 1230.

Minority of surviving children as tolling limitation period in state wrongful death action, 85 A.L.R.3d 162.

Action against parent by or on behalf of unemancipated minor child for wrongful death of other parent, 87 A.L.R.3d 849.

Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 A.L.R.3d 926.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Excessiveness or inadequacy of damages awarded for personal injuries resulting in death of homemaker, 47 A.L.R.4th 100.

Excessiveness or inadequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of parent, 61 A.L.R.4th 251.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse, 61 A.L.R.4th 309.

Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.

Admissibility of evidence, in action for personal injury or death, of injured party's use of intoxicants or illegal drugs on issue of life expectancy, 86 A.L.R.4th 1135.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations, 88 A.L.R.4th 851.

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - impact of other legal concepts and theories of recovery, 6 A.L.R.7th 4.

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - proof, evidentiary considerations, limits of recovery, parties, 5 A.L.R.7th 4.

Action by or on behalf of minor child, or presumed minor child, for loss of parental consortium - general considerations, 4 A.L.R.7th 1.

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