O.C.G.A. § 9-2-41 (2019)

Annotations

Law reviews. For article advocating protection of property rights of deceased injured party by means of survival statute, prior to revision of this Code section in 1952, see 14 Ga. B.J. 40 (1951). For article, “Actions for Wrongful Death in Georgia: Part One,” see 19 Ga. B.J. 277 (1957).

For article, “Actions for Wrongful Death in Georgia: Part Two,” see 19 Ga. B.J. 439 (1957). For article, “Actions for Wrongful Death in Georgia: Part Two,” Section Two, see 20 Ga. B.J. 152 (1957). For comment on Barnwell v. Cordle, 438 F.2d 236 (5th Cir. 1971), refusing to apply doctrine of parental immunity to suit brought by minor against father’s estate, see 8 Ga. St. B.J. 544 (1972). For article, “The Discount Rate in Georgia Personal Injury and Wrongful Death Damage Calculations,” see 13 Ga. St. U.L. Rev. 431 (1997). For survey article on wills, trusts,

guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007). JUDICIAL DECISIONS Constitutionality of 1952 amendment. - The 1952 Act amending this section does not violate Ga. Const. 1976, Art. III, Sec. VII, Paras. IV or XII (see now Ga. Const. 1983, Art. III, Sec. V, Para. III or IV). Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208, 1958 Ga. LEXIS 381 (1958). At common law, a cause of action for a personal tort abated on death of tort-feasor. Citizens’ & S. Nat’l Bank v. Hendricks, 176 Ga. 692, 168 S.E. 313, 1933 Ga. LEXIS 255 (1933). At common law, the axiom “actio personalis moritur cum persona” applied, and personal actions abated upon the death of either party, with certain exceptions. Posner v. Koplin, 94 Ga. App. 306, 94 S.E.2d 434, 1956 Ga. App. LEXIS 528 (1956). This section was extended to rights of action in 1952. Posner v. Koplin, 94 Ga. App. 306, 94 S.E.2d 434, 1956 Ga. App. LEXIS 528 (1956). Purpose of 1952 amendment, inserting words “or cause of action,” was not to create a new cause of action but to provide for survival to administrator of causes of action that existed in the deceased before death; the legislature could have had no other purpose in mind. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208, 1958 Ga. LEXIS 381 (1958). The 1952 amendment to this section, which added the words “or cause of action,” while not creating any new cause of action, was clear in its intent that cause of action once accruing to a person would survive to the person’s personal representative upon the death of such person, when there was no right of survivorship in any other person. West v. Mathews, 104 Ga. App. 57, 121 S.E.2d 41, 1961 Ga. App. LEXIS 604 (1961). Impact of 1952 amendment. - The Act of 1952, Ga. L. 1952, p. 224, amending this section, made the provisions of the Act of 1889 applicable to causes of action or rights of action, as opposed to pending suits which alone were dealt with in that Act. Posner v. Koplin, 94 Ga. App. 306, 94

S.E.2d 434, 1956 Ga. App. LEXIS 528 (1956). Effect of 1952 amendment is to preserve the cause of action of the deceased and to permit an action thereon by the deceased’s administrator. Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 104 S.E.2d 208, 1958 Ga. LEXIS 381 (1958). The 1952 amendment to this section confers a new right, and is remedial only; it may not be given retrospective effect. Biddle v. Moore, 87 Ga. App. 524, 74 S.E.2d 552, 1953 Ga. App. LEXIS 787 (1953). “Cause of action” and “action” distinguished. - Action is the judicial means of enforcing a right, and differs from a cause of action in that the latter is the right itself. Alexander v. Dean, 29 Ga. App. 722, 116 S.E. 643, 1923 Ga. App. LEXIS 175 (1923), aff’d, 157 Ga. 280, 121 S.E. 238, 1924 Ga. LEXIS 34 (1924); Citizens’ & S. Nat’l Bank v. Hendricks, 176 Ga. 692, 168 S.E. 313, 1933 Ga. LEXIS 255 (1933). This section prevents pending action for libel from abating. Johnson v. Bradstreet Co., 87 Ga. 79, 13 S.E. 250, 1891 Ga. LEXIS 97 (1891); Posner v. Koplin, 94 Ga. App. 306, 94 S.E.2d 434, 1956 Ga. App. LEXIS 528 (1956). Fetal victim of a tort must be born alive in order to seek recovery from the alleged tortfeasor. Peters v. Hospital Auth., 265 Ga. 487, 458 S.E.2d 628, 1995 Ga. LEXIS 511 (1995). Survival of cause for wrongful death of husband when wife dies. - When wife sues for wrongful death of husband, and during pendency of such action dies, the action survives in the first instance to the living children of the deceased, and if there are no living children, the action survives to the personal representative of the deceased plaintiff. Campbell v. Western & A.R.R., 57 Ga. App. 209, 194 S.E. 927, 1938 Ga. App. LEXIS 533 (1938). When widow died before instituting action for wrongful death of husband, the

cause of action survived the death of the wife and became vested in the couple’s children. Keenan Welding Supplies Co. v. Bronner, 100 Ga. App. 400, 111 S.E.2d 140, 1959 Ga. App. LEXIS 630 (1959). Wrongful death actions distinguished. - O.C.G.A. § 9-2-41 is distinct from, and should not be confused with, O.C.G.A. § 51-4-1 et seq. (wrongful death), as the latter sections create a new cause of action in certain individuals for the value of the decedent’s life, while O.C.G.A. § 9-2-41 permits survival of the tort claims which the deceased possessed the instant before death. Gilmere v. City of Atlanta, 737 F.2d 894, 1984 U.S. App. LEXIS 18103 (11th Cir. 1984). Survivor’s statutory claim for a decedent’s wrongful death and an estate’s common-law claim for the same decedent’s pain and suffering are distinct causes of action. This does not mean, however, that double damages are recoverable for the same injury. Bibbs v. Toyota Motor Corp., 304 Ga. 68, 815 S.E.2d 850, 2018 Ga. LEXIS 443 (2018). Standing of representatives. - Before determining whether the estates, representatives of the decedents, or direct heirs stated a valid cause of action under 28 U.S.C. § 1605A, the court had to first determine whether the estates had standing to pursue claims for emotional and mental anguish that the decedents suffered while still alive. The court permitted the claims of four of the servicemen’s estates to proceed because: (1) pursuant to O.C.G.A. § 9-2-41, Georgia courts frequently entertained suits, without limitation, brought by estate representatives for personal injury suffered by the decedent while still alive; (2) N.Y. Est. Powers & Trusts Law § 11-3.2 ensured that all tort and contract actions that belonged to a decedent may now be maintained by the estate’s personal representative; (3) Puerto Rico’s law regarding causes of action by members of an estate permitted individual members to bring a cause of action for the decedent’s pain and suffering; and (4) the survivability statute, S.C. Code Ann. § 15-5-90 had a wide ambit, and generally any cause of action which could have been brought by the deceased in the deceased’s lifetime survived to the

deceased’s representative. Anderson v. Islamic Republic of Iran, 753 F. Supp. 2d 68, 2010 U.S. Dist. LEXIS 126457 (D.D.C. 2010). Parent’s right to bring a wrongful death action survives to parent’s representative. - Existing right of action by a parent to recover for the homicide of a child will survive to the representative of the parent’s estate regardless of whether the action was filed during the parent’s lifetime. Caylor v. Potts, 183 Ga. App. 133, 358 S.E.2d 291, 1987 Ga. App. LEXIS 1910 (1987), overruled, Hosley v. Davidson, 211 Ga. App. 529, 439 S.E.2d 742, 1993 Ga. App. LEXIS 1554 (1993). Representative of a parent’s estate is not authorized to bring an action for wrongful death of the parent’s minor child if there is a surviving parent or other person entitled to bring it. Hosley v. Davidson, 211 Ga. App. 529, 439 S.E.2d 742, 1993 Ga. App. LEXIS 1554 (1993), cert. denied, No. S94C0542, 1994 Ga. LEXIS 521 (Ga. Feb. 21, 1994). Recovery, under former Civil Code 1910, § 4421 (see now O.C.G.A. § 9-241), by administrator for decedent’s personal injuries was not bar to wrongful death action under former Civil Code 1910, §§ 4424 and 4425 (see now O.C.G.A. § 51-4-2), by decedent’s wife and children. Spradlin v. Georgia Ry. & Elec. Co., 139 Ga. 575, 77 S.E. 799, 1913 Ga. LEXIS 514 (1913). Suspension of action on death of plaintiff. - Upon death of wife suing for homicide of husband, action does not abate but is suspended; however, nothing further can properly be done in the action until the person or persons in whose favor the action survives is brought or voluntarily appears before the court by proper proceedings. Campbell v. Western & A.R.R., 57 Ga. App. 209, 194 S.E. 927, 1938 Ga. App. LEXIS 533 (1938). Substitution of temporary administrator. - Upon death of parent suing for negligent homicide of child, temporary administrator upon the parent’s estate may be made party plaintiff to the action. Roadway Express, Inc. v. Jackson, 77 Ga. App. 341, 48 S.E.2d 691, 1948 Ga. App. LEXIS 551 (1948), superseded by statute as stated in Caylor v. Potts, 183 Ga. App.

133, 358 S.E.2d 291, 1987 Ga. App. LEXIS 1910 (1987). Action not viable prior to death. - Beneficiaries’ claims against a former trustee failed because the cause of action was not viable against the former trustee before the former trustee’s death. Nalley v. Langdale, 319 Ga. App. 354, 734 S.E.2d 908, 2012 Ga. App. LEXIS 1047 (2012), cert. denied, No. S13C0579, 2013 Ga. LEXIS 394 (Ga. Apr. 29, 2013), cert. denied, No. S13C0578, 2013 Ga. LEXIS 393 (Ga. Apr. 29, 2013). If plaintiff could not have maintained action against decedent during lifetime, action cannot be maintained against decedent’s personal representative. Wrinkle v. Rampley, 97 Ga. App. 453, 103 S.E.2d 435, 1958 Ga. App. LEXIS 798 (1958). Action against husband for tort against wife or against father’s estate for tort against mother. - In this state wife cannot recover of husband with whom she is living for injury caused by his negligent operation of an automobile, and fact that defendant husband is dead at time of action is immaterial, for reason that defendant’s administrator is subject to suit just as wrongdoer himself would have been during his life; moreover, since wife could not bring action if alive, her children could not sue husband (their father) for her wrongful death. Harrell v. Gardner, 115 Ga. App. 171, 154 S.E.2d 265, 1967 Ga. App. LEXIS 1051 (1967). Action against father’s estate for tort to son. - Son injured in auto accident due to alleged negligence of father had a cause of action against father which the son was prevented from converting into a judgment while father lived because of doctrine of parental immunity, but upon father’s death such immunity terminated and father’s estate became subject to liability. Barnwell v. Cordle, 438 F.2d 236, 1971 U.S. App. LEXIS 12041 (5th Cir. 1971), (for comment, see 8 Ga. B.J. 544 (1972)). Husband’s actions distinguished. - Husband’s action for wrongful death of

wife is not part of same cause of action as his action as administrator under this section for wife’s pain and suffering and her medical, hospital, and funeral expenses so as to raise the issue of res judicata. Forrester v. Southern Ry., 268 F. Supp. 194, 1967 U.S. Dist. LEXIS 8233 (N.D. Ga. 1967). Nonabatement of action for railroad employers’ liability. - Under former Code 1910, § 4421 (see now O.C.G.A. § 9-2-41), an action under former Civil Code 1910, §§ 4421 and 5617 (see now O.C.G.A. Art. 1, Ch. 7, T. 34), relating to employers’ liability for railroad employees’ injuries, will not abate. Central of Ga. Ry. v. Jones, 24 Ga. App. 532, 101 S.E. 710, 1919 Ga. App. LEXIS 902 (1919); Central of Ga. Ry. v. Jones, 152 Ga. 92, 108 S.E. 618, 1921 Ga. LEXIS 13 (1921). Administrator proper party to pursue civil rights claims. - In a declaratory judgment case and pursuant to O.C.G.A. §§ 9-2-40 and 9-2-41, an administrator had standing and was the proper party to pursue any surviving 42 U.S.C. §§ 1981 and 1988 civil rights claims on behalf of the decedent’s estate. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324, 2007 U.S. Dist. LEXIS 18420 (N.D. Ga. 2007). Administrator in a RICO action could maintain suit. - In a case in which the intended beneficiaries of two life insurance policies alleged violations of Georgia’s Racketeer Influenced & Corrupt Organizations Act (RICO), O.C.G.A. § 164-1 et seq., the representative of the decedent’s estate may be able to recover in a representative capacity for acts directed toward, or harm incurred by, the decedent. Under O.C.G.A. § 9-2-41, a tort action did not abate by the death of the injured party, but survived to the personal representative of the decedent. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324, 2007 U.S. Dist. LEXIS 18420 (N.D. Ga. 2007).

OPINIONS OF THE ATTORNEY GENERAL Survival of food stamp liability. - Liability provided for in Ga. L. 1965, p. 385, § 13 (see now O.C.G.A. § 49-4-

15(b)), relating to fraudulent use, etc., of food stamps, survived death of recipient and constituted a claim against the recipi-

ent’s estate, even if considered as a cause of action in tort rather than in contract, inasmuch as former Code 1933, § 3-505 (see now O.C.G.A. § 9-2-41) provided that

a cause of action in tort shall survive death of tort-feasor when the tort-feasor received a benefit from the tort. 1965-66 Op. Att’y Gen. No. 66-250.

RESEARCH REFERENCES Am. Jur. 2d. 1 Am. Jur. 2d, Abatement, Survival, and Revival, §§ 38, 44 et seq., 65 et seq. C.J.S. 1 C.J.S., Abatement and Revival, § 124 et seq. ALR. Does right of grantor to maintain a suit in equity to set aside his conveyance for cause survive to his heir, 2 A.L.R. 431; 33 A.L.R. 51. Measure of damages in action for personal injuries commenced by the deceased in his lifetime and revived by his personal representative, 42 A.L.R. 187. Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806. Survival of action or cause of action for wrongful death against representative of wrongdoer, 61 A.L.R. 830; 171 A.L.R. 1392. Abatement of action which does not survive, by death of party pending appeal or writ of error, 62 A.L.R. 1048. Recovery under common law or state death statute where cause of action under Federal Employers’ Liability Acts fails for want of proof that deceased or injured person was an employee of defendant, 66 A.L.R. 429. Survival against community of right of action for a tort of the deceased member of the community, 67 A.L.R. 1159. Survival of cause of action for personal injury or death against tort-feasor killed in the same accident, 70 A.L.R. 1319. Survivability or assignability of action or cause of action in tort for damages for fraudulently procuring purchase or sale of property, 76 A.L.R. 403. Survival upon death of wrongdoer of husband’s or parent’s action or right of action for consequential damages arising from injury to wife or minor child, 78 A.L.R. 593.

Survival of action or cause of action for personal injuries upon death of tort-feasor, 78 A.L.R. 600. Death of tort-feasor before death of injured person as precluding action for death, 112 A.L.R. 343. Kind of verdict or judgment, or verdicts or judgments, where administrator or executor whose decedent was negligently killed brings an action which combines a cause of action for benefit of estate and another for statutory beneficiaries, 124 A.L.R. 621. Revivor of suit for cancellation or suit for reinstatement of life insurance pending at death of insured, 125 A.L.R. 706. Abatement or survival, upon death of party, of action, or cause of action, based on libel or slander, 134 A.L.R. 717. Action against spouse or estate for causing death of other spouse, 28 A.L.R.2d 662. Claim for negligently damaging or destroying personal property as surviving tort-feasor’s death, 40 A.L.R.2d 533. Statutory liability for physical injuries inflicted by animal as surviving defendant’s death, 40 A.L.R.2d 543. Conflict of laws as regards survival of cause of action and revival or pending action upon death of party, 42 A.L.R.2d 1170. Medical malpractice action as abating upon death of either party, 50 A.L.R.2d 1445. Abatement or survival of action for attorney’s malpractice or negligence upon death of either party, 65 A.L.R.2d 1211. Retroactive effect of statute changing manner and method of distribution of recovery or settlement for wrongful death, 66 A.L.R.2d 1444. Illness or death of party, counsel, or witness as excuse for failure to timely prosecute action, 80 A.L.R.2d 1399. Assignability and survivability of cause

of action created by civil rights statute, 88 A.L.R.2d 1153. For whose benefit a survival action under the Federal Employers’ Liability Act, or the Jones Act, may be prosecuted, 94 A.L.R.2d 910. Survival of action or cause of action under civil damage acts, 94 A.L.R.2d 1140. Libel by will, 21 A.L.R.3d 754. Recovery, in action for benefit of decedent’s estate in jurisdiction which has both wrongful death and survival stat-

utes, of value of earnings decedent would have made after death, 76 A.L.R.3d 125. Validity of exception for specific kind of tort action in survival statute, 77 A.L.R.3d 1349. Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707. Defamation action as surviving plaintiff’s death, under statute not specifically covering action, 42 A.L.R.4th 272.