Lynn v. Wagstaff Motor Co., 47273

• Decision Date: 16 June 1972
• Docket Number: No. 47273,No. 2,47273,2
• Citation: 126 Ga.App. 516,191 S.E.2d 324
• Parties: Harriette Y. LYNN et al. v. WAGSTAFF MOTOR COMPANY, Inc., et al
• Court: Georgia Court of Appeals

Page 324

191 S.E.2d 324

126 Ga.App. 516

Harriette Y. LYNN et al. v. WAGSTAFF MOTOR COMPANY, Inc., et al.

No. 47273.

Court of Appeals of Georgia, Division No. 2.

June 16, 1972.

Syllabus by the Court

Although the widow is the statutory representative of all beneficiaries in a wrongful death action, she does not have the authority to act for her minor children in compromising or settling the claim unless she has previously been appointed guardian of their property or the court in which the action is tried grants approval.

Applicants for intervention appeal from the denial of their motion.

The applicants are two minor children whose father was killed in an automobile collision. Their mother and several other plaintiffs have filed wrongful death actions against two defendants. (There are also two third-party defendants involved). The defendants have pleaded a release given by the widow-mother to the defendant driver before this suit was brought. It was a formal release for a consideration of $555, in the form of a check jointly payable to her and a funeral home. In an amendment to her petition to set aside the release and in the motion to intervene, the widow-mother (appearing as next friend to the children) alleged that the release was given for grossly inadequate consideration and was procured by misrepresentation, mistake of fact and overreaching. At the time she gave this release, she had not qualified as guardian of the children.

George & George, William V. George, Forest Park, for appellants.

Neely, Freeman & Hawkins, Joe C. Freeman, Jr., Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Randall L. Hughes, James Patrick Cooney, Atlanta, for appellees.

HALL, Presiding Judge.

A person may intervene of right when he 'claims an interest relating to the property or transaction which is the subject-matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.' Code Ann. § 81A-124(a)(2). It has frequently been stated that the requirements for intervention under the rule are three-fold: interest; impairment resulting from an unfavorable disposition; and inadequate representation. See 3B Moore's Federal Practice § 24.09-1(1).

There is no difficulty with the first requirement. As statutory beneficiaries of the wrongful death act, the children have an interest in any judgment which may be had. Code § 105-1304. The applicants contend that both other requirements are also met since an adverse decision on the widow's attempt to set aside the release will stand as a bar to their claim; that they are in a stronger legal position as infants to have this release set aside; and that if not present in this suit as parties, there will be no mechanism by which they can assert their rights.

If these propositions were indeed correct, the children would be entitled to intervene. We believe, however, that the premises are faulty. While there is no case directly on point, the solution can be reached by consideration of analogous situations.

As merely a natural guardian, a parent may not act as a representative of his child's property interests. To do this, he must qualify with the Ordinary as guardian of the property. Code Ann. § 49-102; Stubbs, Georgia Law of Children § 46. A chose in action is property and a natural guardian has no more authority to sign it away than he would have to sell tangible property of the child. Perkins v. Dyer, 6 Ga. 401; Cf., McCallum v. Bryant, 212 Ga. 348, 92 S.E.2d 531. The authority of an appointed guardian to compromise a claim without court approval under Code § 49-219 is not applicable. The child is there protected from improvidence by the guardian's bond. The same is true of the general rule authorizing administrators to compromise or settle wrongful death actions in those states in which the administrator is the statutory representative. See 72 A.L.R.2d 285. When a child has no recourse against a representative-here because it is a parent and merely a natural guardian, then authority to bind the child cannot exist. For further example, once a suit is in progress, even a guardian ad litem or next friend (they do not post a bond) may not compromise or settle the child's claim without the approval of the court. Betts v. Hancock, 27 Ga.App. 63, 107 S.E. 377. By any reasoning, the mother, per se, has no greater authority.

Approached from another angle, settlement with one or more beneficiaries does not bar any others from proceeding with a wrongful death action. The settling tortfeasor is deemed to have waived the rule against splitting a cause of action. Southeastern Greyhound Lines v. Wells, 204 Ga. 814, 51 S.E.2d 569. Further,...