Tolbert v. Murrell

On Motion for Rehearing.

On motion for rehearing, the defendants urge the court to declare OCGA § 51-4-2 to be unconstitutional, null and void, and thereby find that the plaintiffs have no cause of action for wrongful death in this case. Were we to do so, children whose fathers have been wrongfully killed would have no cause of action for wrongful death, whereas children whose mothers have been wrongfully killed would have causes of action for wrongful death under OCGA § 51-4-3. For the reasons stated in Ins. Co. of North America v. Russell, 246 Ga. 269 (2) (271 SE2d 178) (1980), we overrule defendants’ motion and adhere to our holding that “Henceforth, children of deceased fathers who leave widows shall be afforded the rights afforded children under OCGA § 51-4-3.”

Motion for rehearing denied.

All the Justices concur, except Smith and Weltner, JJ., not participating.