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Supreme Court of Georgia
May 10, 1991, Decided
[*214] [**807] This case involves ] the Georgia wrongful death statute, O.C.G.A. § 51-4-2 (a), which provides:
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.
The claimants are the minor children of Vicky Brown, who was killed in a collision between her automobile and a truck operated by an employee of Liberty Oil & Refining Corporation. She left a surviving spouse, Anthony Wayne Brown. According to the minor children, Anthony Wayne Brown has abandoned them; cannot be located; and would not, in any event, pursue the claim for wrongful death. The trial court dismissed [***2] the children's complaint for failure to state a claim, relying upon Mack v. Moore, 256 Ga. 138 (345 S.E.2d 338) (1986), and O'Kelley v. Hosp. Auth. of Gwinnett County, 256 Ga. 373 (349 S.E.2d 382) (1986).
1. (a) In Mack, supra, we interpreted O.C.G.A. § 51-4-2 to hold:
There is no denial of equal protection in the statute's giving greater rights to surviving spouses than to children to sue for wrongful death. There is a rational basis for the differentiation in the need to designate a representative of the beneficiaries [*215] of any recovery, which the statute provides shall be distributed between the surviving spouse and the 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. The spouse is required to share the proceeds with the children. . . . A duty is owed to the children and part of that duty is to act prudently in asserting, prosecuting and settling the claim. The failure to do this could subject the spouse to liability for breach of duty as a representative. [Id. at 138, 139.]
(b) In O'Kelley, supra, we held that O.C.G.A. § 51-4-2 does [***3] not deny to minor children an effective procedure to protect their rights in an action for a parent's wrongful death.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
261 Ga. 214 *; 403 S.E.2d 806 **; 1991 Ga. LEXIS 215 ***; 102-97 Fulton County D. Rep. 12B
BROWN et al. v. LIBERTY OIL & REFINING CORPORATION et al.
Prior History: [***1] O.C.G.A. § 51-4-2 (a); constitutional question. Colquitt Superior Court. Before Judge Horkan.
Disposition: Judgment reversed.
surviving spouse, minor child, wrongful death, powers, spouse, rights, vest, superior court, greater right, trial court, circumstances, concurrence, abandoned, emotional, proceeds, join
Civil Procedure, Parties, Capacity of Parties, General Overview, Family Law, Family Relationships & Torts, Wrongful Death & Survival, Surviving Spouses, Torts, Wrongful Death & Survival Actions, Preliminary Considerations, Equity, Jurisdiction, Subject Matter Jurisdiction, Criminal Law & Procedure, Jurisdiction & Venue, Marital Termination & Spousal Support, Dissolution & Divorce, Jurisdiction Over Actions