Davenport v. Gulf Life Insurance Co. , 77 Ga. App. 833 ( 1948 )

1. In order for a valid suit to be maintained on the policy sued on, it was essential under the provisions of the policy that the suit be instituted within two years from the ninety-day period after the loss was sustained; and this is true notwithstanding the suit may have been a renewal of a former action which had been nonsuited.

2. The present suit having been filed more than four years after the alleged loss was sustained by the plaintiff, the same was barred under the provisions of the policy, and the trial court properly sustained the defendant's demurrer and dismissed the action.

DECIDED OCTOBER 30, 1948. James M. Davenport filed this suit against Gulf Life Insurance Company in Fulton Superior Court on April 29, 1948. The action was based on an Industrial Travel and Pedestrian Policy, and the plaintiff sued to recover $1800 for injuries sustained while traveling as a pedestrian on a public highway. A copy of the policy is attached to the petition and contains the following provisions: "6. Written notice of injury on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury. . . 9. Affirmative proof of loss must be furnished to the Company within ninety days after the date of such loss. . . 14. No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy." The plaintiff alleges that his injuries were sustained on February 13, 1944. This action is alleged to be a renewal of a suit that was filed on March 20, 1945, and that was nonsuited by the trial court on November 18, 1947.

The defendant demurred to the petition on the grounds, among others: (1) that the petition failed to set out a cause of action; (2) that said alleged cause of action is now barred by the lapse of time, for said action was not filed within two years from the expiration of the time within which proof of loss is required by the terms of the policy.

The trial judge sustained these demurrers and dismissed the action, and the plaintiff excepted. 1. The plaintiff alleged that he was injured and sustained a loss under the policy sued upon, on February 13, 1944. The plaintiff and defendant contracted and stipulated in this policy that affirmative proof of loss must be furnished to the insurance company within ninety days after the date of the loss; and that no action shall be brought to recover on this policy unless brought within two years from the expiration of the time within which proof of loss is required by the policy. Such provisions in a policy of insurance are valid. Massachusetts Benefit LifeAssn. v. Robinson, 104 Ga. 256, 272 (30 S.E. 918, 42 L.R.A. 261), and citations. Conceding, but not deciding, that the preliminary proof of loss was waived as contended by the plaintiff in error, in order for a valid suit to be maintained on the policy here involved, it was essential under the provisions of the policy that the suit be instituted within two years from the ninety-day period after the loss was sustained. And this is true regardless of whether or not the suit is a renewal of a former action which has been nonsuited or dismissed. It was ruled in Melson v. Phenix Ins. Co. of Brooklyn, 97 Ga. 722 (25 S.E. 189): "It being stipulated in a policy of insurance that no action thereon should be sustainable against the insurance company unless commenced within twelve months next after a loss should occur, an action brought after the lapse of that period was barred, although it purported on its face to have been a renewal of a previous action which was instituted within the time limited, and to have been brought within six months after the granting of a nonsuit in the first action." For holdings to the same effect, see Brooks v. Georgia Home Ins. Co., 99 Ga. 116 (24 S.E. 869); McDaniel v. German American Ins. Co.,134 Ga. 189(1) (67 S.E. 668); Whiddon v. National Union FireIns. Co., 61 Ga. App. 434(2) (6 S.E.2d 362).

2. The present suit was filed more than four years after the alleged loss was sustained by the plaintiff, and, under the provisions of the policy sued on, the action was barred. Therefore, the trial court properly sustained the defendant's demurrer and dismissed the action.

Judgment affirmed. Felton and Parker, JJ., concur.