Horton v. Brown

• Decision Date: 21 November 1967
• Docket Number: No. 43069,Nos. 1,3,2,43069,s. 1
• Parties: R. L. HORTON et al. v. Louise V. BROWN et al., Executors
• Court: Georgia Court of Appeals

Page 489

159 S.E.2d 489

117 Ga.App. 47

R. L. HORTON et al. v. Louise V. BROWN et al., Executors.

No. 43069.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 21, 1967.

Rehearing Denied Dec. 20, 1967.

Certiorari Denied Feb. 13, 1968.

Syllabus by the Court

Code Ann. § 105-1306 does not authorize a child to bring an action for the wrongful death of his mother against the 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.

Plaintiffs, the surviving children of Myrtle Horton Varnadore, brought a death action against the administrators of the estate of her husband, Lonnie Varnadore, their stepfather, which alleges that Varnadors shot and killed both their mother and himself, the mother dying one day before the assailant. They sought damages from the latter's estate for the full value of her life under Code § 105-1306. The trial court sustained a general demurrer to the petition.

Gibbs & Leaphart, Alvin Leaphart, Jesup, for appellants.

Leon A. Wilson, II, Waycross, for appellees.

DEEN, Judge.

1. This case is controlled by Harrell v. Gardner, 115 Ga.App. 171, 154 S.E.2d 265, wherein 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 S.E. 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 nor any 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 the Harrell case 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 of this Court 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 full court decision which considered and rejected the argument that the statutes involved in Code Chapter 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 S.E. 37, 43. 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 Harrell, 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.

J. KELLEY QUILLIAN, J., concurs.

PANNELL, J., concurs in the judgment only.

HALL and EBERHARDT, JJ., concur specially.

FELTON, C.J., BELL and JORDAN, P. JJ., and WHITMAN, J., dissent.

HALL, Judge (concurring specially with judgment of affirmance).

I must take exception to the statement made in the above opinion that the full court in Harrell v. Gardner, 115 Ga.App. 171, 154 S.E.2d 265 rejected the argument that the statutes involved in Code Chapter 105-13 create new causes of action, unknown to the common law. On the contrary, the court specifically recognized that the child had been given a new cause of action which did not exist at common law. The question was 'when it changed the common law', did it authorize the 'action only against third persons other than the father?'

The result in this case is controlled by the following authorities: Berry v. Northeastern Railroad, 72 Ga. 137(1); Thompson v. Watson, 186 Ga. 396, 401, 197 S.E. 774, 117 A.L.R. 484; Harrell v. Gardner, 115 Ga.App. 171, 154 S.E.2d 265; Chastain v. Chastain, 50 Ga.App. 241(3), 177 S.E. 828; Heyman v. Heyman, 19 Ga.App. 634, 92 S.E. 25.

As a matter of public policy, I concede that a strong argument can be made that there is nothing wrong in allowing a child to sue his step-father for the wrongful death of his mother. However, the law on this question is not simply what the judges of this court think the law should be, but what the General Assembly has said it is. In seeking former legislative intent, we cannot look forward to recent trends in other states, we must look back to the intent of our own General Assembly. When making this search, we must look to the law as it stood before the statutes were enacted, the mischief against which they did not provide, the remedy which the legislature provided at that time, and the reason for the remedy. At common law and in Georgia prior to the Act of 1850, the mother could sue many persons for the wrongful tort committed against her except that she could not sue her husband. Heyman v. Heyman 19 Ga.App. 634, 92 S.E. 25. However, if the tort resulted in her death, then the tort action did not survive against those persons who would have been liable had death not ensued. In 1846, England enacted a law known as 'The Fatal Accidents Act' or 'Lord Campbell's Act.' This is discussed in an excellent article entitled Actions for Wrongful Death in Georgia, by the late Dean of the Emory Law School, Charles J. Hilkey in 9 Georgia Bar Journal 261, 268, wherein he states that 'the English Act although tested in the first instant by the right of the deceased to bring the action had he lived, created in substance a new and original right in certain beneficiaries.' Four years subsequent to 'Lord Campbell's Act' the Georgia General Assembly enacted a similar provision based upon the English statute. In the 1850 Act, 'The distribution in case of insolvency of one-half of the recovery to the wife and children or to the husband, indicates that the act intended to create a new cause of action rather than to provide for survival of that of the deceased with an added element of damage due to death.' Hilkey, p. 370. Specific language is found in the Codes of 1861 ( § 2913) p. 543 and 1867 ( § 2920) p. 552 authorizing a suit by the children for the wrongful death of the mother. The identical language of these Codes is also found in the Code of 1873 ( § 2971) p. 511. In an 1880 case involving a suit by children for wrongful death of the mother, the Supreme Court stated that these Acts were 'codified from the Acts of 1850 and 1855-6 Cobb's Digest, p. 476; Acts of 1855-6, p. 155 * * *' Atlanta and West Point Railroad Co. v. Venable, 65 Ga. 55. The 1855-6 Act was merely cumulative and did not repeal the Act of 1850. South Western Railroad Co. v. Paulk, 24 Ga. 356. It is now known as Code Ann. § 105-1306. In all these Acts, 'It is deemed that in cases where the deceased had no cause of action before his death that none should be accorded to his beneficiary or estate.' Hilkey, p. 371. While the Code of 1861 and subsequent codes do not have language that the action 'could be brought where the deceased, if death had not ensued, would be entitled to an action against the wrongdoer * * *. The inference from the original requirement would be that in cases where the deceased could not have brought an action, had he lived, no action for wrongful death could be maintained. The general rule in America has been to read this requirement into the statute though not specifically included. (25A C.J.S. (Death) 616, § 24; 22 Am.Jur.2d 659, § 80). The Georgia Courts have recognized this requirement, although the converse is not true that the beneficiaries have an action if the deceased was entitled to an action, since the recovery is not for the benefit of the estate generally but by or on behalf of specified beneficiaries.' Hilkey, p. 373. For this statement, Dean Hilkey cites the cases of Berry v. Northeastern Railroad, 72 Ga. 137(1) and Thompson v. Watson, 186 Ga. 396, 401, 197 S.E. 774, 117 A.L.R. 484. The Berry case (a full bench decision) held that 'A widow may recover for the homicide of her husband; she will have a right of action whenever the husband, had he lived, would have had such right, and whatever would have been a good defense to his suit, had he lived, will be equally available against one brought by her.' In the Thompson case (two Justices dissenting), four children brought an action against their sister for the wrongful death of their father. The defendant demurred on two grounds (1) that there was no cause of action in the children against another child of the family for the wrongful death of the father, and (2) if any right there was, it vested in all-not individually. The Supreme Court upheld the demurrer on both grounds. As to the latter ground, the law was amended in 1960 to allow the action to be brought...