(dissenting).
I agree with the conclusions of the trial court, stated in his memorandum thus:
“As indicated above, there is little or no dispute as to the actual facts. * * * It seems sufficient that there was little actual confinement. Plaintiff left his home for many reasons. During most of the critical period he was employed and he left his home for his work. He left his home for recreation, vacations, shopping and other purposes, much as any person might do. That some of these activities may have been with the advice and consent of his physician does not alter the fact that he was not substantially confined to his home.”
“The fallacy of this argument of plaintiff [that there was substantial confinement] is that it eliminates as practically meaningless a substantial provision in the contract of the parties.”
*40The majority opinion simply truncates unceremoniously all that part of the contract which specifies the duration of coverage. Part 7, § A, of the policy provides:
“Total Disability And Non-Confinement
“A. If such sickness shall wholly, necessarily and continuously disable and prevent the Insured from performing each and every duty pertaining to his occupation, the Company shall pay the monthly sickness indemnity for the period, not exceeding twenty-four consecutive months, the Insured shall be so disabled and necessarily under the regular care and attendance of a legally qualified physician or surgeon other than himself.” (Italics supplied.)
Although the policy expressly limits coverage to 24 months unless the insured is “necessarily and continuously confined within the house,” we now hold that the quoted language is to be read out of the contract entirely. As a result, plaintiff has paid for an ordinary 24-month total disability policy and has received one which is apparently good for life.
I concur in the well-expressed views of the Nebraska court in Mutual Benefit Health & Acc. Assn. v. Milder, 152 Neb. 519, 546, 41 N. W. (2d) 780, 795, which construed a similar policy and rejected the position here taken by the majority:
“A health and accident insurance company may limit its liability in any reasonable manner. The provisions of the policy involved in this case recognize that hazard in health insurance is greater than in accident insurance. Ordinary knowledge and experience support that view. The symptoms of disease are frequently only subjective, while in cases of accident the evidence is more commonly objective. The terms of the policy also recognize that with unguarded health policies, slight illness might tempt an insured to seek relaxation from ordinary labor or activity at the maximum expense of an insurer. If, however, the claimant in order to enjoy the fruits of his simulations must be confined continuously within doors and have regular visits therein by a physician, he will quickly grow weary of them. It is to discourage doubtful claims of total disability from illness or the pro*41traction of illness for the purpose of securing maximum benefits of insurance contracts that insurers condition full indemnity to confinement indoors accompanied by regular medical attendance. This is the character of the contract under which appellee claims. It does not unreasonably limit liability, and no principle of public policy is thereby contravened. * * *
“A construction of the contract sufficiently liberal to comprehend maximum recovery by appellee is urged. It is a sound principle of law that doubt and ambiguity in an insurance contract should be resolved in favor of the insured. Frequent decisions of this court affirm this rule, but this doctrine does not mean that a clear provision of the contract is to be ignored or words stretched to include gratuities. The language from another decision quoted with approval in Stone v. Physicians Casualty Assn. supra, clearly states this [130 Neb. 769, 773, 266 N. W. 605, 607]: ‘It does not follow, however, that the terms of an insurance policy may be distorted from their natural meaning, or that the agreed liability of the insurer should be enlarged into one which only a new contract could have imposed, nor, indeed, that a court should indulge in scholastic subtleties to extend the rights of the insured. * * * Courts should not be “cunning and astute to evade, rather than quick to perceive and diligent to apply, the meaning of the words,” as manifestly intended by the parties.’ ”
I would affirm.
Mr. Justice Sheran, not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.