Horton v. Brown

159 S.E.2d 489, 117 Ga. App. 47, 1967 Ga. App. LEXIS 1300

• Court: Court of Appeals of Georgia
• Decided: November 21, 1967
• Docket: 43069
• Status: Published

Opinions

Deen, Judge.

1. This case is controlled by Harrell v. Gardner, 115 Ga. App. 171, 174 (154 SE2d 265), where this court stated the question before it to be as follows: “Since the mother, for whose wrongful death this action is brought, could not if she were living bring a negligence action against her husband, may the children sue the father under Code Ann. § 105-1306 for the wrongful death of the mother when the mother’s death allegedly resulted from his negligent tort?” The court then (this writer dissenting) answered the question in the negative. That decision was based solely on a determination that the children’s right of action for the wrongful death was derivative from their mother, as shown by the fact that the court held the case completely analogous to Chastain v. Chastain, 50 Ga. App. 241 (3) (177 SE 828). The cases are analogous in that in both there was no right existing in the mother to sue the father for a personal tort. In Chastain, however, the children were minors who could not sue their father in their own right for a negligent tort, whereas in Harrell v. Gardner they were adults who could do so unless barred by the fact that their right of action was derivative from their mother, who was laboring under the disability of coverture during her lifetime. The reasoning in Harrell is important to the case at bar, since the plaintiffs are the children of the deceased mother but have no blood relationship to her husband and no personal disability to bring an action against him or his estate. As to an ordinary tort there is no reason why these plaintiffs could not sue the estate of their stepfather for a tort committed by him against them during his lifetime, but equally in Harrell there was no bar to a suit by the plaintiffs there, adult children, against the defendant or his estate. Both cases therefore, must be controlled by the decision in Harrell holding that the fact that the mother could not have brought suit against her husband during her lifetime will bar an action by her children against him for her death. This was a decision by the whole court which considered and rejected the argument that the statutes involved in Code Ch. 105-13 create new causes of action, unknown to the common law. “These statutes of this State adopted and extended Lord Campbell’s Act and its successors, and establish liability for wrongful death where none existed before; they are familiar examples of the legislative creation of new rights and duties for the prevention of homicides or for satisfying social and economic needs.” Western & A. R. Co. v. Michael, 175 Ga. 1, 13 (165 SE 37). However, since a majority of the members of this court is of the opinion that the right, as it appears from the facts of this case and the Harrell case, supra, is derivative, it follows that no cause of action is set out by these adult children, suing for the death of their mother due to a wilful tort inflicted by her husband.

Judgment affirmed.

Quillian, J., concurs. Pannell, J., concurs in the judgment only. Hall and Eberhardt, JJ., concur specially. Felton, C. J., Bell, P. J., Jordan, P. J., and Whitman, J., dissent.