This is an appeal from a judgment of the United States District Court for the Northern District of California, denying appellant a refund of federal income tax. The District Court held that a San Francisco fireman’s sick leave pay was not an amount “ ‘received through accident or health insurance * * *, as compensation for * * * sickness * *’ ” and consequently was properly included in his gross income. Appellant contends that this was improper construction of the exclusion provided for in Section 22 (b) (5) of the Internal Revenue Code of 1939.

Appellant’s late husband, a Captain in the San Francisco Fire Department, had bronchitis and was unable to work for 35 days in 1949. Under the provisions of the City Charter and certain Ordinances and Regulations he was paid $489.17, and the suit is for a refund of the tax attributable to that amount. The Fire Department “Sick Rule” provides for a leave of absence with full pay in case of illness. Firemen employed at least one year are entitled to two weeks leave annually. This leave is cumulative when not used, but the maximum leave may not exceed six months. A fireman must report illness immediately, file physician’s certificates and receive visits from the Department physician and the battalion chief. Penalties are provided for abuses of the rule. The firemen pays no premiums, and the City of San Francisco carries no commercial insurance to cover the payments made to men on sick leave and maintains no special fund for this purpose. The fireman has an enforceable right to these payments.

26 U.S.C. § 22 (b) (5) as amended in 1942, provides:

Statutes sought to be construed as exempting income from taxation, if doubtful as to such a character are to be deemed as not creating such exclusion. The Supreme Court in an analogous case so holds, stating:

United States v. Stewart, 311 U.S. 60 , at page 71, 61 S.Ct. 102 , at page 109, 85 L.Ed. 40 .

The doubt as to whether an agreement to pay wages during sickness is wage insurance or health insurance has divided practically evenly the federal courts of appeals and district courts. One court of appeals is on each side of the question. Four district courts are for the liability of the employee to the Government. Four district courts are against such liability.

It will be noted that if health insurance includes loss of wages, that sum would be exempted twice if as they usually are they are recovered as a part of “the amount of the damages received” on account of such “sickness” also to be exempted under section 22(b) (5). It is difficult to believe that Congress intended such double exemption and this casts strong doubt that it was the Congressional intent to include wage compensation as a part of health insurance.

It also can well be argued that insur-anee which provides for the continuation or replacement of wages during sickness, only insofar as it serves- to pay medical bills or offset-an impairment of the body, is health insurance. That part which represents only the loss of earnings is not compensating for the direct costs of the sickness but for a loss resulting from that sickness. While such provisions may be often found in health policies they actually are a loss-of-wages insurance,

it further seems doubtful that Congress intended to exempt sums from taxation which represent only a replacement 0f income which would otherwise be taxable, and the legislative history of Section 22(b) (5) supports such a doubt. Shortly before Congress passed the section the Attorney General stated in an opinion that the proceeds of accident insurance were not taxable income since they were akin to a replacement of capital.

The House Committee Report accompanying the bill apparently adopted this theory. It stated: '

A replacement or a continuance of wages during the period of sickness is not a replacement “of capital in human ability which was destroyed by the accident.” Moreover, it is difficult to see any doubt that Congress might have had under the 1917 Internal Revenue Act that insurance proceeds replacing lost income would be taxable income as to the amount over and above that paid in as premiums.

The doubt is intensified by Congress’ treatment of life insurance in another subdivision of Section 22(b). Prior to 1951, Section 22(b) (1) exempted from taxation:

In 1951, Congress amended this section to exempt:

The Senate Committee Report accompanying this amendment stated:

If employer death benefit plans were “insurance,” the 1951 amendment would have been unnecessary. If such death benefit plans were not “insurance” before this amendment, sick leave plans without the benefit of a similar amendment cannot be deemed “insurance.”

The judgment is affirmed.

. Moholy v. United States, D.C.N.D.Cal. 1955, 132 F.Supp. 32 . . Similar provisions are now in 26 U.S.C. §§ 104 , 105, 106. See Comment, Taxation of Employee Accident and Health Plans Before and Under the 1954 Code, 64 Yale L.J. 222 (1954). . Charter of City and County of San Francisco, § 153; Civil Service Commission Buie 32, § 11; Buies of the San Francisco Fire Department §§ 408-431. . For the Government: United States v. Haynes, 5 Cir., 1956, 233 F.2d 413 ; Cary v. United States, D.C.D.Neb., 141 F.Supp. 750 ; Branham v. United States, D.C. W.D.Ky.1955, 136 F.Supp. 342 ; Oliva v. Commissioner, 25 T.C.-; Moholy v. United States, D.C.N.D.Cal., 132 F.Supp. 32 . For the Taxpayers: Epmeier v. United States, 7 Cir., 1952, 199 F.2d 508 ; Priebe v. United States, 4 P-H 1956 Fed. Tax Serv. par. 72,611 (D.Ariz.1956); Adams v. Pitts, D.C.E.D.S.C.1956, 140 F.Supp. 618 ; Tinsley v. United States, id. at par. 72,606 (W.D.Okla.1956) ; Herbkersman v. United States, D.C.S.D.Ohio 1955, 133 F.Supp. 495 . See also, Comments, 21 U. of Chi.L.Rev. 277 (1954); 51 Mich. L.Rev. 1248 (1953); 39 A.B.A.J. 329 (1953). Cf. Schlenger, Disability Benefits Under Section 22(b) (5), 40 Va. L.Rev. 549 (1954). . Cf. Miller v. Hocking Glass Co., 6 Cir., 1935, 80 F.2d 436 ; E. B. Tousek, 1925, 1 B.T. A 1164 . 1918, 31 Op.Atty.Gen. 304, 308 . H.R.Rep. No. 767, 65th Cong., 2d Sess. 29-30 (1918) [1939-1 Cum.Bull. (Part 2) 86. 92]. It lias been argued that “Congress probably resorted to the return-of-eapital rationale in order to give a legal gloss to an emotional reluctance to tax.” Schlenger, note 4, supra, at 552.