Opinion
41525.
SUBMITTED SEPTEMBER 8, 1965.
DECIDED SEPTEMBER 16, 1965.
Action on insurance policies. Floyd City Court. Before Judge Maddox.
Fullbright Duffey, Harl C. Duffey, Jr., for plaintiff in error.
Wright, Walther Morgan, Barry Wright, Jr., Robert G. Walther, contra.
The plaintiff's petition did not state a cause of action to recover accidental death benefits under the policies of insurance sued upon since the allegations of the petition affirmatively disclosed that the insured did not die within 90 days of his accidental injury as required by the policies in order for accidental death benefits to be payable thereunder.
SUBMITTED SEPTEMBER 8, 1965 — DECIDED SEPTEMBER 16, 1965.
Mrs. Mary Randall, as beneficiary under three policies of insurance issued on the life of her deceased husband by the defendant insurance company, filed suit in three counts to recover the benefits allegedly due her under the attached policies. Her petition, each count of which was based upon a different policy, alleged that the insured sustained certain accidental injuries effected solely through violent and accidental means at 1:30 p. m., September 4, 1964, and that as a result of said injuries, he died at 11:15 a. m., December 4, 1964.
The policy upon which count 1 was predicated provided for the payment of a primary benefit upon death of the insured and for an additional benefit in the event the insured died from accidental injuries if "death occurs within 90 days from the date of such injuries," while the policies upon which counts 2 and 3 were based, were accident policies and provided that the primary benefits thereunder were payable if the insured died of accidental injuries within "90 days from the time such injuries were sustained."
The defendant insurance company demurred to each count of the petition on the ground that no cause of action was set forth to recover accidental death benefits since the petition showed on its face that the insured's death did not occur within 90 days from the time the alleged accidental injuries were sustained as required by the policies sued upon which were attached as exhibits to the petition.
The trial court sustained these demurrers and entered an order dismissing counts 2 and 3 of the petition and that part of count 1 in which a recovery of accidental death benefits was sought. The exception is to that judgment.
A provision in a life and accident insurance policy that death must occur within 90 days from the date of injury in order for accidental death benefits to be payable thereunder is a valid limitation and there is no liability for accidental death benefits under a policy containing such limitation unless death occurs within the specified period. Bennett v. Life Cas. Ins. Co., 60 Ga. App. 228 (1) ( 3 S.E.2d 794); Metropolitan Life Ins. Co. v. Jackson, 79 Ga. App. 263 (1) ( 53 S.E.2d 378); 118 ALR 334.
The allegations of the plaintiff's petition affirmatively disclosed that death of the insured did not occur within the 90 day period of limitation set forth in the policies sued upon and the trial court did not err in sustaining the demurrers under review here. Excluding the date upon which the injury to the insured occurred, September 4, 1964, and allowing 90 full days therefrom beginning with September 5, 1964, the 90 day period of limitation expired at midnight of December 3, 1964, 26 days in September, 31 days in October, 30 days in November and 3 days in December, and the death of the insured on December 4, 1964, was not within the 90 day period. As to the computation of time, see Dobbs v. Conyers, 36 Ga. App. 511 (1) ( 137 S.E. 298); Rusk v. Hill, 117 Ga. 722 ( 45 S.E. 42); Harris v. Plains Mercantile Co., 187 Ga. 337 ( 200 S.E. 241); 86 CJS 845, Time, §§ 12, 13 (1) (7).
Judgment affirmed. Felton, C. J., and Deen, J., concur.