This is a-suit on an accident and sick benefit policy of insurance. Under the terms of the policy the insured is entitled to recover $10 per week on account of sickness or accident for a рeriod of 104 weeks. The petition alleges that on November 15, 1920, plaintiff became afflicted with a serious illness; that prior to that time he was in good health; that his affliction has become chroniс, and, since November 15, 1920, he has been confined and totally disabled by reason thereof; that from thе date of his illness until July 2, 1921, or for a period of 8 months, defendant accepted the premiums, which werе paid by petitioner according to the terms of the policy, but on July 15, 1921, the defendant returned the рremium paid by plaintiff on July 2, 1921, and has since then refused to accept from plaintiff the tendered рremiums due on said policy since that date; that defendant paid to plaintiff the weekly sick benеfit of $10 per week, as is provided by the policy, for the first 7 weeks of plaintiff’s illness, but thereafter refusеd to make any further payments to him, and at the date of the institution of this suit defendant was indebted to plаintiff in the sum of $970, for which sum he prays for judgment.
To plaintiff’s petition, the defendant filed exceptions of lis рendens, vagueness, and no right or cause of action. These exceptions were overruled, and defendant’s answer is, in effect, a general denial. It is averred in the answer that the policy lapsed on July 18, *359 1921, for nonpayment of premiums; that, after paying the stipulated sick benefits for 7 weeks, the defendant’s physician reported that plaintiff was not confined to his bed or house, as is expressly provided by condition 2 of the policy, and thereupon defendant rejected the claim of plaintiff for further weekly payments; that on June 18, 1921, plaintiff presented another claim for weekly рayments under the terms of the policy, but defendant’s physician again reported that plaintiff was nоt confined to his bed, and refused to be examined by defendant’s physician, and for these reasons defendant rejected plaintiff’s demand.
The real issue in the case involves an interpretation of condition No. 2 of the policy. This condition is as follows:
“Weekly benefits at the rate specifiеd in the schedule will be paid each seven days (a) for each day that the insured is by reason of illness under the care of a physician and necessarily confined to bed, except that, where the insured is a male whose place of employment is away from his residence, confinemеnt within the house and medical attention therein, if preceded by at least one week’s confinement to bed, shall be sufficient, or (b) for each day that the insured is by reason of accidental injury, of which there is external evidence, disabled from performing work of every nature; provided in eaсh case, (a and b) such confinement or disability is not less than four consecutive days and a certificate is furnished by a duly licensed and practicing physician as herein provided. Benefits for acсident will not be paid for any period for which benefits are payable for illness, and the total рeriod for which benefits will be paid under this policy for any one illness (insanity excepted) or accident is two years.”
It is not necessary to discuss defendant’s allegation that the policy lapsed for the nonpayment of dues, because payment thereof was tendered to the defendаnt, and defendant refused to accept these payments. In fact, defendant did acceрt the payment made on July 2, 1921, but, thinking better of the matter, at a later date, viz. July 15, 1921, it refunded this payment to the plaintiff. The conduct of the defendant with reference to these payments rendered it impossible for plaintiff to make them according to the terms of the policy, and by defendant’s own act he was absolved from any further duty in the premises.
The district judge found as a fact that plaintiff’s illness incapаcitated him from work of any kind, and while the plaintiff frequently visited the office of his attending physician for trеatment, he construed the word “confined” as used in the policy to mean inability to do work rather than physical in-. ability to leave the house. We think this interpretation was correct, especially as plaintiff was totally incapacitated for 7 weeks, and was paid by the defendant $70 or $10 pеr week for those 7 wéeks, and because condition No. 2 of the policy reads:
“That where the insured is a male whose place of employment is1 away from his residence, confinement within the hоuse and medical attention therein, if preceded by at least one week’s confinement to bed, shall be sufficient.”
There is nothing in this record to show where the plaintiff resided when he suffered the affliction for which the weekly payments are demanded. Under these circumstances we think the judgment appealed from is correct, and it is therefore affirmed, at appellant’s cost.