Mack v. Moore, 43420

• Decision Date: 03 July 1986
• Docket Number: No. 43420,43420
• Court: Georgia Supreme Court
• Parties: MACK v. MOORE.

Page 338

345 S.E.2d 338

256 Ga. 138

MACK v. MOORE.

No. 43420.

Supreme Court of Georgia.

July 3, 1986.

Irwin M. Ellerin, Irwin M. Ellerin, P.C., Atlanta, for Nickola Livetta Mack, b/n/f.

Eugene P. Chambers, Jr., Chambers, Mabry, McClelland & Brooks, Atlanta, Joseph Szczecko, Simmons, Warren & Szczeko, P.A., Marc Astore, Decatur, for Sidney Leighton Moore.

CLARKE, Presiding Justice.

Nickola Mack brought this wrongful death action against Sidney Moore for the death of her father Eric Harris. Zenovia Harris, the surviving spouse of the deceased, brought this motion to intervene and to dismiss. Finding that Nickola had no standing to bring the action because Georgia law confers standing to bring a wrongful death action only upon the surviving spouse if there be a surviving spouse, the court allowed the intervention of Zenovia Harris and granted the motion to dismiss. Nickola appeals, asserting as error the court's holding that the statute in question, OCGA § 51-4-2, confers exclusive standing on surviving spouses and in not holding that statute unconstitutional. Her argument is that because the statute confers exclusive standing upon surviving spouses it denies equal protection to children of deceased parents.

The 1985 amendment to OCGA § 51-4-2 and the legislature's repeal of OCGA § 51-4-3 corrected the constitutional infirmity which caused this court to strike down § 51-4-2 in Tolbert v. Murrell, 253 Ga. 566, 322 S.E.2d 487 (1984). The unconstitutional infirmity lay in the provision that children of deceased mothers, whose rights were governed by OCGA § 51-4-3, were given greater rights to pursue actions for the wrongful death of their mothers than were children of deceased fathers, whose rights were governed by OCGA § 51-4-2. The unconstitutionality stemmed from the disparate treatment of different classes of children. Appellant argues that amended OCGA § 51-4-2, which treats all children equally, is unconstitutional because it treats children differently from surviving spouses.

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. OCGA § 51-4-2(d).

Ms. Mack argues that the statutory authority of the surviving spouse creates a basic unfairness because the children of the deceased are at the mercy of the spouse. She contends that the surviving spouse could settle the claim unreasonably or even refuse to assert a claim at all thereby precluding any benefits to the children. We do not share this view. 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. This means the spouse acts not solely as an independent party but rather as an individual and as the...