The following opinion upon motion for rehearing was filed May 18, 1904. Rehearing denied:
Sedgwick, J.In the brief upon this motion for rehearing it is insisted that:
“The hard and fast rule of determining the meaning of the words, ‘physical inability to work,’ by holding that they mean the same kind of work at which he was engaged at the time of the accident, * * * seems unreasonable and unwarranted.”
There seems to be force in the argument that, if the plaintiff had recovered from the injury so as to be able to perform labor similar and equivalent to that required in the employment in which he was engaged at the time of the accident, or was able to perform the duties of an engagement that was open and available to him, whereby he could support and maintain himself as he was able to do before the-accident, he was “able to work” within the meaning of that expression in the contract.
The conclusion in this case would not be affected by such construction. The fact in this case as to whether he had recovered from his disability, as pointed out in the opinion, -is to be determined upon the stipulation of the parties to the effect that the medical examiner decided “that the plaintiff was able to work” and “was not entitled to any further disability benefits,” and upon the evidence of the examiner himself showing in what sense, and to what extent, the plaintiff was “able to work.” Under that stipulation and evidence, the plaintiff was still disabled under either construction of the contract. It is therefore unnecessary,- in this case, to decide whether “inability to work is inability to perform his ordinary duties in the employment in which he was en*571gaged at the time of his injury,” or the Avord inability should be construed as above indicated.
Upon the other point urged in the motion and brief, no authority is cited supporting the proposition that the defendant could, in the first action, take the position that it was not liable for damages because plaintiff had elected to receive relief benefits, and, having defeated plaintiffs action 'for damages upon that contention, then insist that it Avas not liable for relief benefits because of the bringing of the action which it had so defeated.
We are satisfied with our conclusion upon this point, for th,e reasons stated in the opinion.
The motion for rehearing is, therefore, overruled.
Rehearing denied.