Walden v. Coleman

• Decision Date: 08 February 1962
• Docket Number: No. 21502,21502
• Parties: , 95 A.L.R.2d 579 Mrs. O. M. WALDEN v. W. C. COLEMAN.
• Court: Georgia Supreme Court

Page 265

124 S.E.2d 265

217 Ga. 599, 95 A.L.R.2d 579

Mrs. O. M. WALDEN v. W. C. COLEMAN.

No. 21502.

Supreme Court of Georgia.

Feb. 8, 1962.

N. Forrest Montet, Atlanta, for plaintiff in error.

Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

CANDLER, Justice.

Mrs. O. M. Walden sued W. C. Coleman for the full value of the life of her husband, O. M. Walden, and alleged that he was killed by the negligence of the defendant's wife, Marion W. Coleman while she was driving a car her husband owned and kept for the pleasure and convenience of his family. The defendant filed a plea in bar which in substance alleges: Marion W. Coleman is a daughter of the plaintiff and O. M. Walden, the deceased, was her father. Any amount of damages which the plaintiff recovers in her suit will under Code § 105-1304 belong to her and her two children and will be distributed between the three under this State's law of descents, as if it were personal property descending to the widow and children from the deceased. If the plaintiff is permitted to maintain her action and a recovery is obtained, Marion W. Coleman, the person whose negligence allegedly caused the death of her father, will receive one-third of such amount 'which is contrary to public policy, and other applicable laws of this State.' The parties stipulated that Marion W. Coleman is a daughter of the plaintiff and that O. M. Walden, the deceased, was her father. On that stipulation, the court overruled the defendant's plea in bar. The defendant excepted to that judgment and sued out a writ of error to the Court of Appeals. That court held that the defendant's plea in bar should have been sustained and accordingly reversed the trial court's judgment. See Coleman v. Walden, 104 Ga.App. 661, 122 S.E.2d 757. On application therefor, this Court granted the writ of certiorari to review the judgment rendered by the Court of Appeals. Held:

In 1850 an act was passed in this State which provides: 'In all cases hereafter where death shall ensue from or under circumstances which would entitle the deceased, if death had not ensued, to an action against the perpetrator of the injury the legal representative of such deceased shall be entitled to have and maintain an action at law against the person committing the act from which the death resulted--one half of the recovery to be paid to the wife and children, or the husband of the deceased, if any, in case of his or her estate being insolvent.' Cobb's Dig., p. 476. The act has been several times amended. Code, Ann. § 105-1302 which was codified from the original act and three amendments to it provides: 'A widow, or, if no widow, a child or children, minor or sui juris, may recover for the homicide of the husband or parent, the full value of the life of the decedent, as shown by the evidence.' Code, Ann. § 105-1304, which is an amendment to the original act which was passed in 1878 (Ga.L.1878-9, p. 59), provides: 'In the event of a recovery by the widow she shall hold the amount recovered subject to the law of descents, as if it were personal property descending to the widow and children from the deceased.' And Code, Ann.Supp. § 105-1306 comes from the amendments to the original act which were passed in 1887 (Ga.L.1887, pp. 43, 45) and in 1939 (Ga.L.1939, p. 233), and that section declares: 'The husband and/or child or children may recover for the homicide of the wife or mother, and those surviving at the time the action is brought shall sue jointly and not separately, with the right to recover the full value of the life of the decedent, as shown by the evidence, and with the right of survivorship as to said suit, if either shall die pending the action.' This section was further amended in 1960 (Ga.L.1960, p. 968), but it is not here necessary to state the provisions of that amendment. However, attention is called to the fact that Watson v. Thompson, 185 Ga. 402, 195 S.E. 190 was decided by this Court before the amendment of 1939 to § 105-1306 was passed. It is contended and argued in the instant case that our death statute as amended was passed for the purpose of giving compensation by action to the families of those killed by others and that the right or cause of action was given thereby jointly to all of the specified beneficiaries or to none of them. This contention is sustained by the majority holding in Thompson v. Watson, 186 Ga. 396, 197 S.E. 774, 117 A.L.R. 484. The Court of Appeals in rendering the decision complained of in the case at bar followed the majority holding of this Court in Thompson v. Watson, supra. Chief Justice Russell and Mr. Justice Jenkins did not agree to that decision but neither filed a dissenting opinion. In that case the suit was brought under Code § 105-1302, and it was there alleged that Mrs. Thompson, while driving a car which her husband owned and kept for the pleasure and convenience of his family, had a wreck which was caused by the defective condition of her husband's car and the reckless manner in which she was operating it, and that her father and mother who were riding with her as guest passengers, were both killed, but the mother predeceased the father. Four of the five children of the deceased father brought a suit against the fifth child (Mrs. Thompson) and her husband for the full value of the father's life and this Court held that a demurrer to the petition should have been sustained as to both of them because no right or cause of action is given under Code § 105-1302 to four of five children of a deceased father against a fifth child for the homicide of the father, caused by the joint negligence of such child and her husband since the right or cause of action is jointly in all of the children of the deceased father whose wife predeceased him or in none of them, and because the petition failed to state a cause of action against the other defendant--Mr. Thompson since his wife, one of the five children of the deceased, was an indispensable party plaintiff to the action. That case clearly held that the cause of action declared on was jointly in all of the children of the deceased father or in none of them, and in a suit against the husband of the fifth child, the failure to join the fifth child as a party plaintiff, solely on the ground that she is liable with her husband, defeats the action. In the case at bar the facts are like those of the case just discussed, except the wife survived her husband and she, as his widow, brought a suit under Code § 105-1302 for the full value of his life but only against her son-in-law, the owner of the car, and he by a plea in bar challenged her right to maintain her suit on the ground that since the petition affirmatively alleges that his wife's negligence caused the death of her father, it therefore shows that she will not be legally entitled to a part of the recovery which her mother may obtain; hence, the suit against him cannot be maintained because any right to recover damages for the decedent's death is, under Code § 105-1302, jointly in his widow and all of his children or in none of them. So it is apparent that the same question which was presented to this Court for decision in Thompson v. Watson, supra, is again presented by the instant case, and if the holding in that case announces a correct principle of law, it necessarily follows that the trial judge erred in failing to sustain the defendant's plea in bar, and that the Court of Appeals committed no error in reversing his judgment.

In Happy Valley Farms v. Wilson, 192 Ga. 830, 16 S.E.2d 720, this Court answered certain questions which had been certified to it by the Court of Appeals. There...