Walden v. John D. Archbold Memorial Hosp., Inc.

Citation398 S.E.2d 271,197 Ga.App. 275
Decision Date16 October 1990
Docket NumberNo. A90A0824,A90A0824
CourtUnited States Court of Appeals (Georgia)

James C. Banks, Tallahassee, Fla., for appellants.

William U. Norwood, III, Thomasville, for appellees.


Charles McIntyre, Dewayne Mitchell, Alberta Glenn, and siblings of James Edward Anderson brought suit for medical malpractice, negligence, and wrongful death against John D. Archbold Memorial Hospital and others, seeking recovery of damages stemming from Anderson's death. It was alleged that Anderson had been injured by defendants on December 6, 1986 and had died from those injuries on January 14, 1987. Plaintiffs originally filed suit on December 2, 1988, but voluntarily dismissed that suit and refiled the instant suit on August 3, 1989.

In the renewed complaint, plaintiffs identified themselves as "next of kin and heirs." Defendants moved in August 1989 to dismiss the complaint for failure to state a claim upon which the relief demanded could be granted, based on the failure of plaintiffs to name the real parties in interest to the varying claims and on the running of the statute of limitation. The trial court granted the motion in part, holding that in the absence of a surviving spouse, the wrongful death claim could be brought only by McIntyre and Mitchell (by next friend Pauline Mitchell), as Anderson's illegitimate children, in effect dismissing the remaining plaintiffs. The trial court directed plaintiffs' counsel to recast the complaint to reflect that McIntyre and Mitchell b/n/f Mitchell were the plaintiffs in the wrongful death action and to file and serve the complaint within 15 days. The trial court also granted defendants' motion to dismiss as to the remaining claims on the basis that those claims had not been prosecuted within the statutory period by any person having the right to do so, and directed that the recast complaint not include any claims for those other damages.

No express determination of finality was included in the order, see OCGA § 9-11-54(b), and no certificate for immediate review was sought from the order, see OCGA § 5-6-34(b), due to plaintiffs' understanding that the order entered was a proposal rather than a final judgment. Plaintiffs thereafter filed an amended complaint in compliance with the directions in the order insofar as McIntyre and Mitchell b/n/f Mitchell were concerned, but added Glenn, as "personal representative" of Anderson's estate, as plaintiff in the negligence and medical malpractice claims for the purpose of seeking damages for Anderson's pain and suffering, his medical, funeral, and other expenses, and for attorney fees and punitive damages. Plaintiffs then moved for a rehearing on the order. The trial court entered a second order in which it allowed the amended complaint as to the wrongful death claim, but dismissed Glenn as to the remaining claims for the same reason set forth in the earlier order. The trial court then certified its order pursuant to OCGA § 5-6-34(a), and plaintiffs' application for interlocutory appeal was granted.

1. Appellants contend the trial court erred by ruling that Anderson's illegitimate children (in the absence of a surviving spouse) had the exclusive right of action on the wrongful death claim under OCGA § 51-4-2, thereby dismissing Anderson's siblings, the remaining appellants, from pursuing the claim. Although appellant siblings enumerate as error that OCGA § 51-4-2 violates their equal protection and due process rights, a matter not addressed by the Supreme Court when considering a constitutional challenge to OCGA § 51-4-2 in Mack v. Moore, 256 Ga. 138, 345 S.E.2d 338 (1986), appellants' constitutional challenge to the statute was not raised before and passed on by the trial court in order to invoke the jurisdiction of the Supreme Court. Accordingly, this court has jurisdiction of the appeal. Mason v. Town of Berlin, 128 Ga.App. 177, 196 S.E.2d 181 (1973).

The constitutionality of OCGA § 51-4-2 is thus presumed, see Corvair Furniture Mfg. Co. v. Bull, 125 Ga.App. 141, 144(2), 186 S.E.2d 559 (1971), and the statute, by its express terms, vests the cause of action for the wrongful death of a spouse or parent in the surviving spouse or, if there is no surviving spouse, in the child or children of the decedent. (It should be noted that OCGA § 51-4-2(f), which provides that the illegitimacy of a child does not bar recovery under the statute, became effective after Anderson's death on July 1, 1988, see Ga.L.1988, p. 1720, § 17, although the holding in Edenfield v. Jackson, 251 Ga. 491, 306 S.E.2d 911 (1983) is applicable here.) Construed strictly because it is in derogation of common law, Boggan v. Boggan, 145 Ga.App. 401, 402, 243 S.E.2d 664 (1978), OCGA § 51-4-2 clearly does not encompass the maintenance of a wrongful death action by the siblings of a decedent. Accordingly, the trial court properly dismissed appellant siblings as parties to the wrongful death suit.

2. Contrary to the dissent's assertion, a review of the errors enumerated and the arguments raised by the parties in their briefs reveals that the trial court's ruling that the wrongful death suit be recast in the names of appellants McIntyre and Mitchell b/n/f Mitchell is not challenged by any of the parties to this appeal. Rather, appellant siblings argue that they should be allowed to maintain the wrongful death suit as plaintiffs because the siblings "are fearful that should [McIntyre and Mitchell, the illegitimate children], to whom the trial court has given the exclusive cause of action, be unable to prove their right to sue and inherit as 'children' of the decedent, that [appellant siblings] will be forever barred by the statute of limitations from pursuing their claim as the next of kin of the decedent." Although appellant siblings assert that they should remain as plaintiffs in the wrongful death suit "until it is determined whether or not there is a surviving child," since appellant siblings can never qualify as proper plaintiffs under OCGA § 51-4-2, as construed above, there is no merit to their argument. Further, even as "next of kin" under OCGA § 51-4-5(a), they could not maintain an action in their own name since the right of action lies with the administrator of the decedent's estate. DeLoach v. Emergency Med. Group, 155 Ga.App. 866, 867(2), 274 S.E.2d 38 (1980), overruled in part sub silentio as to OCGA § 9-3-71 (former Code Ann. § 3-1102) by Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983) and Shessel v. Stroup, 253 Ga. 56, 58, 316 S.E.2d 155 (1984). Thus, it appears that this court has not been called upon to address the trial court's handling of the issue whether McIntyre and Mitchell are "children" under OCGA § 51-4-2.

3. Appellants contend the trial court erred by dismissing their causes of action for negligence and medical malpractice and the damages sought for medical and funeral expenses, the decedent's pain and suffering, attorney fees, and punitive damages. Under the plain language in OCGA §§ 9-2-41 and 51-4-5(b), upon the death of Anderson these causes of action vested in the administrator of his estate, not, as appellants assert, in them as Anderson's heirs and next of kin. Contrary to appellants' argument, Harrison v. Holsenbeck, 208 Ga. 410, 412, 67 S.E.2d 311 (1951) does not support their position. In Harrison the successor administrator to an estate sought to cancel certain deeds to real property which had not been challenged within the statute of limitation either by the predecessor administratrix or the heirs at law. The Supreme Court's holding was based on an application of former Code Ann. § 113-907 (OCGA § 53-4-9), which authorizes heirs at law to institute actions in the absence of an administrator when real property is involved. See also Arnold v. Freeman, 181 Ga. 654, 657(2), 183 S.E. 811 (1935). Since the case at bar does not involve real property, OCGA § 53-4-9 is not applicable, and Harrison, supra, is distinguishable.

Accordingly, since appellants were not the proper parties to assert the causes of action under OCGA §§ 9-2-41 and 51-4-5(b), the dismissal of them was proper.

4. The dissent contends that the trial court should be ordered to substitute the administrator of Anderson's estate to prosecute the causes of action under OCGA §§ 9-2-41 and 51-4-5(b). As a general rule, "the lack of an indispensable party is not cause for dismissal, particularly if the indispensable party can be joined. [Cits.] ... Thus, if plaintiff[s] [are] not the real part[ies] at interest, the court should in hearing the preliminary defense make a determination under [OCGA § 9-11-17], and if the indispensable party can be joined, the court should ordinarily permit the joinder and not dismiss but take such other action as may be required by [OCGA § 9-11-17 or OCGA § 9-11-14. Cit.]." Sherwood Mem. Park v. Bryan, 142 Ga.App. 664, 665, 236 S.E.2d 903 (1977). In the case sub judice, however, no such joinder or substitution could have occurred because no administrator was appointed until nearly five months after the trial court's order.

The record establishes that appellees moved to dismiss appellants' complaint under OCGA § 9-11-12(b) on August 28, 1989. On October 13, 1989, the trial court ruled that the proper party to pursue the claims under OCGA §§ 9-2-41 and 51-4-5(b), i.e., the administrator of Anderson's estate, was not among those plaintiffs bringing the suit. On November 28, 1989, when the trial court issued its final ruling on appellees' motion, no administrator to Anderson's estate had been named. Thus, the indispensable party to these claims did not exist as a matter of law, and there existed no party who was subject to service of process as temporary administrator of Anderson's estate who could be joined under OCGA § 9-11-19 or substituted under OCGA § 9-11-25. The supplemental record reflects that a temporary administratrix of...

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