Brown v. Liberty Oil & Refining Corp.

• Decision Date: 10 May 1991
• Docket Number: No. S91A0077,S91A0077
• Citation: 403 S.E.2d 806,261 Ga. 214
• Court: Georgia Supreme Court
• Parties: BROWN et al. v. LIBERTY OIL & REFINING CORPORATION et al.

Page 806

403 S.E.2d 806

261 Ga. 214

BROWN et al. v. LIBERTY OIL & REFINING CORPORATION et al.

No. S91A0077.

Supreme Court of Georgia.

May 10, 1991.

J. Sherrod Taylor, and Jefferson C. Callier, Taylor & Harp, Columbus, for Brown et al.

F. Thomas Young, James B. Thagard, and Pearce Scott, Young, Young & Clyatt, Valdosta, for Liberty Oil.

WELTNER, Justice.

This case involves the Georgia wrongful death statute, OCGA § 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 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. Hospital Authority of Gwinnett County, 256 Ga. 373, 349 S.E.2d 382 (1986).

1. (a) In Mack, supra, we interpreted OCGA § 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 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. 256 Ga. at 138, 139, 345 S.E.2d 338.]

(b) In O'Kelley, supra, we held that OCGA § 51-4-2 does not deny to minor children an effective procedure to protect their rights in an action for a parent's wrongful death.

We reiterated the holding in Mack, supra, and stated:

This holding adequately protects any property interest that children might have in an action for a parent's wrongful death. The legislature has created a procedure intended to enable children to share in any proceeds of such an action. It has not created a procedure whereby they might share in control of such an action. We find the legislature's handling of this delicate and emotional area of the law constitutionally adequate. [Id. 256 Ga. at 374, 349 S.E.2d 382.]

2. (a) The minor children assert that it is within the equity powers of the superior court to permit the prosecution of their claim in order to protect their interests when the surviving spouse refuses to do so. They cite the following authorities:

(i) OCGA § 23-1-3, which provides:

Equity jurisdiction is established and allowed for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of law would be deficient in protecting from anticipated wrong or relieving for injuries done.

(ii) OCGA § 23-4-20, which provides:

Any person who may not bring an action at law may complain in equity and every person who is remediless elsewhere may claim the protection and assistance of equity to enforce any right recognized by the law.

(b) Our Constitution vests general equitable powers in the superior court. ¹ We hold that the factual circumstances of this case demand the exercise of those powers to preserve the rights of the minor children. The trial court should have allowed these minors, who have no remedy at law, to maintain an action for the wrongful death of their mother. Any contrary holding in Mack, supra, and in O'Kelley, supra, is overruled.

Judgment reversed.

All the Justices concur, except HUNT, BENHAM and FLETCHER, JJ., who concur in the judgment only.

HUNT, Justice, concurring.

Although I am now a subscriber to Justice Gregory's special concurrence in Mack v. Moore, 256 Ga. 138, 345 S.E.2d 338 (1986), I will join in...