dissenting:
The majority opinion treats the words “riding” and “driving” as present participles governing “races,” while to my mind they are clearly adjectives qualifying the noun “races.” The former construction is based in the opinion wholly on the fact that persons operating automobiles are properly described as “driving” them, and that automobile races were common when the certificate in question was issued.
*394This entirely overlooks the contention of plaintiff in error that the exemption clause, as a whole, makes the second named construction necessary.
The first provision of the exemption clause is that the benefits promised shall not extend to death, etc., “while the insured member is acting as aviator, etc., * * * or is playing professional baseball,” etc. It should be noted that this clause expressly exempts from benefits members injured “while” doing specified acts, present participles being used with the auxilliary verb “is,” forming sentences grammatically complete and requiring no construction.
In the next line the construction changes, and it is provided that such benefits shall not “cover or extend to any death, disability or loss resulting from fighting, riding or driving races, over-exertion (unless in an effort to save human life), riot, the moving or transportation or use of gunpowder,” etc.
Here there is excluded from the exemption specified acts or events designated in each class by one word, a noun, governed by the preposition “from”; but followed by a class of events not expressed by one word, as before; but by a present participle and its object, which participle — - “moving” — is, according to the rules of good English, preceded by the article “the,” and followed by the preposition “of,” e. g., “the moving of gunpowder.”
Further along, in this clause, we find: “the intentional taking of medicine or drugs,” etc.
Why should it be supposed that one, who thus wrote according to good usage, should,- in a preceding line, have written bad English? How does it happen that the language is not: “the riding or driving of races,” if the writer was using the two words as participles ?
Again, why should the writer adopt the barbarous locution : “from driving races,” when he everywhere else in the instrument shows a knowledge of good English, and introduces his present participles with the conjunction “while”? Ordinary usage requires that the phrase be: “driving in a race,” if “driving” be used as a participle.
*395The word “races,” without qualification, always and everywhere is taken to mean horse races. If one is mentioned as “following the races,” or “playing the races,” every one understands that horse races are meant. There are two kinds of horse races, one in which the participating horses are ridden, and the other in which they are driven.
All other races are designated by the name of the class to which they belong, e. g., automobile races, boat races, and foot races.
This usage is general, if not universal.
To treat “riding” and “driving” as participial adjectives is to give this clause its ordinary and natural meaning, and make it grammatical and harmonious. This is the meaning which the words had in policies long before automobiles were invented.
The construction adopted by the majority .opinion makes “races” include all speed contests which may be ridden or driven; but no reason is apparent why other races, e. g., yacht races, boat races, swimming races, etc., should not be included in the list.
The fact that insurance policies, or certificates, like the one in this case, are sold on solicitation by agents of the insurer, who is responsible for the language used, is a potent reason for applying the rule that, in case of doubt as to the meaning of an instrument, such doubt should be resolved against the one who drew it. Such a doubt exists here, as is shown by the difference of opinion by members of the court.
In a case recently decided by this court (Finding v. Ocean A. & G. Co., 177 P. 142), the opinion, written by the writer of the majority opinion in this case, contains the following:
“In Wood on Fire Insurance, at section 59, it is said: ‘It is the duty of the insurer to clothe the contract in language, so plain and clear that the insured can not be mistaken or misled. * * * Having the power to impose conditions, and being the party who draws the contract, he must see to it that all conditions are plain, easily understood, and free from ambiguity. * * * Failing to em*396ploy a clear and definite form of expression, the benefit of all doubts will be resolved in favor of the assured.”
From Preferred Accident Ins. Co. v. Fielding, 35 Colo. 19, 83 Pac. 1013, 9 Ann. Cas. 916, the opinion quotes as follows:
“It is now a well recognized rule that where the terms of a policy of insurance are not clear or are capable of two constructions, the one which is most favorable to the insured will be adopted.”
If the language under consideration is not capable of two constructions, and so within the rule thus stated, there could be no reason for an extended discussion of it in the majority opinion. . ■ . _■
The judgment should be reversed.