dissenting. If this court’s decision in Harrell v. Gardner, 115 Ga. App. 171, cited in the majority opinion, requires the result reached here then in my opinion it should be re-examined.
*54This is the first time the appellate courts of this state have been confronted with this exact question. A similar factual situation existed in Wrinkle v. Rampley, 97 Ga. App. 453 (103 SE2d 435), but that case turned on the requirement of Code Ann. § 105-1306 that all survivors must sue jointly. The 1960 amendment to this Code section modified this requirement so as to allow suit by fewer than all those having a right of action.
If the major premise of Harrell is that the plaintiffs in that case could not maintain an action against the father because the mother had no cause of action had she lived, i.e., that the right of the plaintiffs was derived solely from the mother, then in my opinion the reasoning is faulty and the law on this question is correctly expressed in Judge Deen’s dissent in that case. As pointed out there the right to sue for wrongful death of a parent, spouse or child is a new, unrelated cause of action given by statute solely by reason of the survivor’s relationship to the deceased, citing Burns v. Brickle, 106 Ga. App. 150 (126 SE2d 633); Bloodworth v. Jones, 191 Ga. 193, 194 (11 SE2d 658) and other cases. The Wrongful Death Statutes are intended to allow a recovery for damages suffered by the survivors, not the decedent, as a result of the wrongful invasion of their rights. It seems manifestly clear that the General Assembly did not intend that such cause of action would be derivative from any right the decedent might or might not have, for the statute plainly provides that “those surviving at the time the action is brought shall sue.” If the right of action derived solely from the deceased, clearly those surviving at the time of such death or their representatives would be entitled to bring the action. The statute affirmatively negates the latter. Code Ann. § 105-1306.
However, it is my opinion that the rationale of Harrell is really based on the “family unity” doctrine which disallows damage suits between members of a family as being contrary to public policy. To fully understand this opinion we must examine the earlier authorities dealing with this subject. Consideration of public policy, together with common law property rights, is the basis for not allowing a wife to sue her husband for a tort during coverture. Heyman v. Heyman, 19 Ga. App. 634 (92 SE 25). The same consideration of public policy does *55not prevent an adult child from suing a parent, since the legal obligation for support, protection, and education no longer exists and such child then occupies the “same status as any other.” Farrar v. Farrar, 41 Ga. App. 120 (152 SE 278).
Then we come to Bulloch v. Bulloch, 45 Ga. App. 1 (163 SE 708), a tort action by an unemancipated child against her father, in which this court held in a well reasoned opinion by Judge Guerry that “whatever may have been the rule at common law, we are satisfied that it would be against the public policy of this State to allow the maintenance of such an action.” Pp. 3, 4.
The next case is Chastain v. Chastain, 50 Ga. App. 241 (177 SE 828), also written for the court by Judge Guerry, which holds that a wife cannot sue her husband for the negligent death of their five year old son. The only two Georgia cases relied on in Chastain are Heyman and Bulloch, supra, both based on considerations of public policy, the court further adopting the language in a Mississippi case to the effect that “the peace of society, and of families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society” forbid such an action. Chastain v. Chastain, 50 Ga. App. 241, supra, Hn. 2.
This brings us up to Harrell which was an action by adult children against their father’s estate for the wrongful death of their mother allegedly caused by the negligence of the deceased father. We there held that such an action would not lie, based on the “completely analogous” case of Chastain, reasoning that if the General Assembly did not intend to authorize a mother to sue the father for the wrongful death of their child (Chastain), then it “consistently did not intend in Code Ann. § 105-1306 to authorize a child to sue the father for the alleged wrongful death of the mother,” (p. 175) at the same time noting that Chastain “held such an action to be against the public policy of this state.”
This review of these cases leads me to the conclusion, as stated above, that the holding in Harrell is primarily based on considerations of public policy, relying on Chastain, which in turn cited and relied on Bulloch and Heyman.
If this is the bedrock of these cases, then the present action should lie since no consideration of public policy is involved. *56Here the plaintiffs, not related to the deceased stepfather, able in their own right to maintain an action against the defendant or his estate, are under no disability whatsoever, because of public policy or otherwise, and should be entitled to maintain this action against the defendant’s estate for the alleged homicide of their mother by the stepfather.
The only result of Harrell then, was to eliminate the father or his estate as a defendant in an action by a child for the wrongful death of the mother, for the reasons stated above. We framed the question in Harrell (p. 174) as follows: “Did the General Assembly intend to authorize an action by a child against its father for the wrongful death of its mother, or to authorize this action only against third persons other than the father? We are of the opinion that it intended the latter.” (Emphasis supplied.)
By our answer we eliminated the father as a defendant, at the same time holding that such actions would be authorized “against third persons other than the father.” Since the defendant’s decedent here is not the father, he can only be a “third person,” as contemplated by the above language. Being such a third person and a stranger to the plaintiffs, with no relationship such as would bar the action on the basis of public policy, the defendant’s estate should be subject to suit for the wrongful death of the mother of the plaintiffs.
The Florida Supreme Court, in a case involving the identical factual situation we have here, concluded that the wife’s disability to sue her husband should not bar a suit by the wife’s surviving children against the estate of the husband and stepfather. Shiver v. Sessions, (Fla.) 80 S2d 905. This very logical opinion reviews the authorities on this subject and cites 28 ALR2d 662 at page 666 where it is stated “It appears to be the recent and well-reasoned trend of the courts to allow recovery against a husband or his estate, in an action by or for the benefit of children for damages sustained by reason of the unlawful killing of their mother.”
As stated by the Pennsylvania Supreme Court in Rodney v. Staman, 371 Pa. 1 (89 A2d 313), cited in the Shiver case, supra, “Unquestionably, a wrong has been done relatives of the wife *57who fall within the purview of the Act. No good reason exists why a late relationship between the deceased and the tortfeasor should bar the damaged third persons from recovery.”
Judge Hall’s special concurrence relies heavily on language from Dean Hilkey’s treatise to the effect that, in cases where the deceased had no cause of action before his death, none should survive to his beneficiary or his estate. But one of the clearest and most logical conclusions reached by the Dean in his article is on page 371 of 9 Ga. Bar J., where he states: “Viewed then from both the historical point of view and apparent meaning of the statutes, it would seem that the intent of the legislature was to create a new cause of action rather than to provide for the survival of that of the deceased.”
The special concurrence concludes by purporting to draw a circle around all the members of a family as a class, allowing a suit for the wrongful death of one of these members only against someone outside the circle (class). Both this court and the Supreme Court have said that the word “parent” used in the statutes means the lawful father or mother, and that a child cannot recover for the homicide of his stepfather even though he stood in loco parentis to the child. Marshall v. Macon &c. Lumber Co., 103 Ga. 725 (30 SE 571, 41 LRA 211, 68 ASR 140); Weems v. Saul, 52 Ga. App. 470 (183 SE 661). A stepfather is simply not within the circle; is one “other than a member of the class designated” and as such is subject to suit for the wrongful death of a member of the circle.
The judgment of the trial court sustaining the general demurrer should be reversed.
I am authorized to state that Chief Judge Felton, Presiding Judge Bell, and Judge Whitman concur in this dissent.