I cannot agree with the majority. The case before us is one of first impression in this jurisdiction. However, pro-ration provisions similar to section 17 found in the health and accident policy of the appellant have been construed in other cases. The term of the Mutual Life Insurance policies held by appellee and the policy involved in this litigation are different in *Page 471 many respects as an examination of such policies clearly discloses. The Mutual Life policies are the usual life insurance policies containing a "total disability" provision paying benefits for such casualty, and the policy involved in this litigation is a health and accident policy which likewise contains a clause paying for total disability. The two types of policies must be construed in their entirety to determine what was intended by section 17 of the policy here sued on. The dominant feature of each of the Mutual policies is life insurance. Incidental thereto, though a part of it, is the total disability clause contained in the Mutual Life policies. The policy of appellant is a health and accident contract of insurance. Incidental thereto, though a part of it, is the "total disability" provision. The Mutual policies are life insurance policies and not accident and health insurance policies. The Mutual policies did not insure against disease or accidents unless death or total disability ensued. On the contrary, the appellant's policy insured against sickness and accident irrespective of the ultimate result.
In a separate provision of each of the Mutual policies as well as the policy of the appellant, we find a provision to the effect that, in case of total and presumably permanent disability of the insured, she was to receive certain benefits. Herein is the only similarity between the two types of policies. From all this it seems clear that the primary feature of the Mutual policies was insurance against death irrespective of the cause. The life insurance feature of the appellant's policy paid only if the insured died as the result of an accident. Its primary and dominating feature was insurance against any sickness or accident, whether partial or total disability resulted, and against accidental death. As said by the Missouri court in Jones v. Prudential Insurance Co., 208 Mo. App. 679, 236 S.W. 429, 432: "In deciding the character of this contract between the parties, it may be well to bear in mind the difference between an ordinary life policy and an accident policy."
When this difference is borne in mind, it is clear that the insurance carried in the Mutual Life Insurance Company is not "other insurance covering the same loss." The dominant feature of the policy is the test by which we determine the kind of insurance intended. As was said by the Supreme Court of Missouri: "The mere addition of one or more features or elements in a contract of insurance on life, that may serve to give the contract or policy a particular designation in the business or insurance world, will not in the least devest the contract or policy of its chief character of insurance on life, or make the contract other than life insurance." Logan v. Fidelity Casualty Co., 146 Mo. 114, 47 S.W. 948, 950.
The Missouri Court of Appeals in Jones v. Prudential Ins. Co., supra, said: "In deciding the character of this contract between the parties, it may be well to bear in mind the difference between an ordinary *Page 472 life policy and an accident policy. In an ordinary life policy the insurer contracts to pay a certain sum of money when satisfactory proof is made that the insured has died. Death is the contingency which must happen that will create liability under the contract. Liability attaches under such a policy when death occurs, and the policy is in good standing irrespective of the cause of the death, whether it be brought about by natural causes, by intention, or by accident; and, in the broad sense, any life insurance policy is accident insurance, if perchance the death is occasioned by reason of an accident. On the other hand, the primary contingency insured against in an accident insurance policy is that no accident will befall the insured under the terms of the policy and in such time as the policy is kept alive. * * * It may be said that in an ordinary life policy death is the contingency insured against, and if it be the result of an accident such accident is but incidental, while in the accident policy the accident is the thing insured against, and death is but one of the incidents or classes of injuries insured against."
Neither appellant or the Mutual Life Insurance Company conceive of their policies as being total disability insurance policies. One is a life insurance policy. The other is an accident and health insurance policy. The construction contended for by appellant, I am convinced, is one never contemplated by the parties, and not justified by the facts.
The first object of construction is to ascertain the intention or meaning of the parties, and to interpret the contract by that intention or meaning. The purposes of the two policies throw light on the intention or meaning, and it could not have been the intention of the parties to the accident policy to contract against life insurance which contained an additional proviso against total disability as "covering the same loss," as that not insuring against parties or total loss by injuries or sickness. Had the appellant intended otherwise, it could have so provided in section 17 in more specific terms.
It has been so held in the case of Arneberg v. Continental Casualty Co., 178 Wis. 428, 190 N.W. 97, 100, 29 A.L.R. 93, by the Supreme Court of Wisconsin. That court had under consideration a clause of an accident policy identical with the one now under consideration and it was held: "The contention of appellant is that the policy issued by the Northwestern Mutual Life Insurance Company was for the same loss covered by the accident insurance policy sued upon, and that defendant is liable only for such portion of the indemnity promised in its policy as the said indemnity bears to the total amount of like indemnity in all policies covering such loss. While both policies furnished indemnity in case of accidental death, they were not alike in any other provision. The Northwestern Mutual life insurance policy provided indemnity in case of death from whatever cause. This *Page 473 of course included death by accident. It is well understood that death benefits are not the dominant feature of an accident insurance policy. The dominant feature of that kind of a policy is indemnity for loss of time resulting from accident. These two policies overlap only in the one contingency — accidental death. In no other respect are they alike and in no other respect did they cover the same loss."
Though the question in the Arneberg Case was not related to the total disability provisions of the policies in question but predicated on the so-called "double indemnity" provisions in the event of accidental death, yet the legal principles involved the construction of a provision in the accident policy identical with section 17 herein, and are the same.
The contents of the policy which appellee purchased are dictated by the appellant, and the appellee could not before accepting it add one word to or subtract one word from that contract. This condition of affairs has caused courts everywhere to hold that the contract must be strictly construed against the insurer, and if there be any doubt as to the construction of the contract, the doubt must be resolved in favor of the insured. We have so held. Collier v. Union Indemnity Co., 38 N.M. 271,31 P.2d 697; Nikolich v. Slovenska Nardona Podporna Jednota,33 N.M. 64, 260 P. 849. Section 17 was prescribed by the appellant and its terms could have been made much clearer had appellant desired to specifically intend a life insurance policy containing a provision paying for total disability as a policy of insurance covering the same loss as its own policy. Liberal intendment and enlarged construction are used to favor the insured and not the insurer.
The majority opinion is predicated upon the theory that "other insurance" does not mean "other insurance policy." Technically that may be correct. Appellant contends that the appellee's application for insurance with appellant is a part of the policy. It is therein provided that the falsity of any statement made in the application bars the insured from any right of recovery, and appellee's answer to question 8 of such application was to the effect that she did not carry any other health and accident insurance. According to appellant's theory, this was untrue, was unknown to appellant, was material to the acceptance of the risk assumed by appellant, and that this constituted a breach of warranty barring the right of appellee to recover from appellant. Let us place the appellant and appellee in the exact positions they were in at the time of the creation of the contract and in doing so we have a better understanding of the resultant obligations under the contract.
The appellant by its own formulated and prepared application, through its own agent, G.A.M. Wilson, asked the appellee the following question:
"Are you carrying or have you applied for any other accident or health insurance? If so, state fully the name of the company, association or society, and amounts carried in each must be stated." *Page 474
To this appellee replied that she had not applied for any other accident or health insurance. She answered truthfully. To her mind, the Mutual Life Insurance Company policies were "life insurance" policies and not accident or health insurance policies. She was not carrying "any other accident or health insurance" policy as generally understood. The record is silent as to whether or not the agent of the appellant explained to appellee that such life insurance policies carrying total disability provisions were (according to the present claim of appellant) health and accident policies. The appellee answered that she had no accident and health insurance. Such answer was truthful in fact and in law.
Only one conclusion can be reached. To the mind of the appellee at the time she applied for insurance the question propounded related to health and accident insurance policies and not to life insurance policies. The question propounded by appellant to the appellee indicates the appellant's own conception of its insurance contracts, namely, health and accident insurance and not life insurance. The question propounded by appellant indicated a desire upon the part of appellant to determine whether appellee carried other health or accident insurance policies, not life insurance policies which may have a clause insuring against total disability.
As I construe the two types of policies, and in light of statutory recognition of their distinctive features, the life insurance policies of the Mutual Life Insurance Company with their total disability provisions are not "other insurance covering the same loss" as contemplated either in answer to question 8 or which required notice of appellant under the provisions of section 17 of its policy. What appellant meant in asking question 8 was other accident and health insurance and that is exactly what appellee meant when she answered "no" to question No. 8. This meaning and understanding of the contract is what the parties to the insurance contract are bound by. This is the same meaning to be given section 17 of the insurance contract. To adopt a strict view in favor of a partial forfeiture of the insurance bought and paid for the appellee is a view of the law in which I cannot concur.