LANNING, District Judge.
The defendant in error commenced this action against the plaintiff in error to recover the amount of an insurance policy issued by the plaintiff in error to the defendant in error on February 4, 1904. The building covered by the policy was destroyed by fire on December 7, 1904. It had been occupied by tenants who were miners, and who were keeping in it, for use in their trade, blasting powder. One of the tenants accidentally threw a lighted fuse into an open can of blasting powder, which resulted in an explosion and the fire. The defendant in error recovered a verdict and judgment, [962]*962and the plaintiff in error now seeks to have the judgment reversed because of alleged errors in the trial of the action.
The policy contains these provisions:
“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, uped or allowed, on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gunpowder exceeding twenty-five pounds in quantity, naptha, nitro-glycerine, or other explosives. * * * This policy-is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”
The trial court permitted parol testimony to be given to the effect that the local agent of the insurer, Mr. Brown, by whom the policy was delivered to the insured, knew, at the time of its -delivery, that the building would soon he occupied by miners as tenants, and that it was the custom of miners to keep blasting powder in their houses, and that because of these facts Mr. Brown charged the insured a rate of insurance higher than the customary rate for tenement buildings. There was no proof that thé insured knew that she had paid more than an ordinary rate for her insurance, and there was nothing on the face of the policy that showed ,it. Other testimony was admitted to prove that dynamite and gunpowder are more powerful explosives than blasting powder. In the charge to the jury, the trial court said:
“Now, gentlemen, it is alleged that blasting powder was included among these articles by the term ‘other explosives.’ Ordinarily it is the duty of a court to construe a written instrument, and instruct the jury what the terms mean. But in this case, under the facts and-proofs here, bearing in mind the words of the policy and the testimony of Mr. Brown in reference to this property being used as a miners’ house, and the testimony that miners are in the habit of keeping blasting powder on the premises, and also the testimony in regard to the fact that an extra charge (if such he the case) was made in this case by reason of the fact that it was a miners’ residence, we have decided to leave it to you, as a question of fact for yon to determine, whether, under the evidence and the facts proven here, blasting powder is included in tbe term ‘other explosives.’ In other words, whether it was the intention of the insurance company, when it issued this policy through Mr. Brown, to provide therein that, if blasting powder was kept, used, or allowed on the premises, the policy was to be void and of no effect.”
If the language of the policy on the point of keeping blasting powder on the insured premises is obscure, it was proper to admit parol testimony to explain its meaning, and to submit to the jury, as a question of fact, any disputed question concerning its meaning. Otherwise, as stated by the court in the charge, it was the duty of the court to construe the language. The counsel for the defendant in error .contend that the proof that blasting powder is an explosive of lower power than dynamite or gunpowder requires the words “or other explosives” to [963]*963be limited in meaning so that they shall include no substance of lower explosive power than gunpowder. But we think that such an applica*tion of the maxim “noscitur a sociis” is too narrow. The general words “or other explosives” are associated not alone with dynamite and gunpowder, but also with benzine, benzole, ether, fireworks, gasoline, Greek fire, naptha, and nitro-glycerine. For aught that appears in the record of the case, some of the specifically prohibited substances are explosives of lower power than dynamite or gunpowder, or even than blasting powder. Greek fire, for example, is a term that was applied to explosives for centuries before the invention of gunpowder or blasting powder. In the absence of proofs on the point, it is fair to assume that Greek fire is an explosive of lower degree than gunpowder or blasting powder. There is no evidence to show the explosive power of benzine, benzole, ether, gasoline, or naptha, as compared with that of blasting powder. The relative explosive powers of these substances is not a matter of common knowledge. If blasting powder is less dangerous than some of them, but more dangerous than others, it is included in the general words as ejusdem generis with the substances that are specifically named. If its explosive power is of a lower degree than that of any of the substances specifically named, and if, for that reason, it is not ejusdem generis with the substances specifically named (a point on which no opinion is expressed), then, since the general words in their literal and natural meaning include blasting powder, the burden was on the insured to show its lower explosive power. To hold, under the present proofs, that the general words “or other explosives” do not include blasting powder, merely because it is a less dangerous explosive than dynamite' or gunpowder, when it may be more dangerous than Greek fire, benzine, benzole, ether, gasoline, or naptha, is virtually to decide arbitrarily that no meaning or effect shall be given to the general words. We are satisfied that this cannot be done, and that, as the proofs stand, the general words include blasting powder.
Another point relied upon by the counsel of the insured is that the jury must have concluded that, when Mr. Brown delivered the policy to the plaintiff, he knew the building was soon to be occupied by miners, and that it was the custom of miners to keep blasting powder in their houses, and that, for these reasons, he charged a higher rate of insurance than he otherwise would have charged. Therefore, it is argued, the jury must have found that Mr. Brown intended that blasting powder should be excluded from the list of explosives which the policy prohibited the insured from keeping on the premises. The parol testimony offered had also for its purpose the proving of this alleged intention, notwithstanding the express provision of the policy that no agent of the insurer should have the power to waive any provisions of the policy, unless the waiver should be indorsed thereon.
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LANNING, District Judge.
The defendant in error commenced this action against the plaintiff in error to recover the amount of an insurance policy issued by the plaintiff in error to the defendant in error on February 4, 1904. The building covered by the policy was destroyed by fire on December 7, 1904. It had been occupied by tenants who were miners, and who were keeping in it, for use in their trade, blasting powder. One of the tenants accidentally threw a lighted fuse into an open can of blasting powder, which resulted in an explosion and the fire. The defendant in error recovered a verdict and judgment, [962]*962and the plaintiff in error now seeks to have the judgment reversed because of alleged errors in the trial of the action.
The policy contains these provisions:
“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, uped or allowed, on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gunpowder exceeding twenty-five pounds in quantity, naptha, nitro-glycerine, or other explosives. * * * This policy-is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”
The trial court permitted parol testimony to be given to the effect that the local agent of the insurer, Mr. Brown, by whom the policy was delivered to the insured, knew, at the time of its -delivery, that the building would soon he occupied by miners as tenants, and that it was the custom of miners to keep blasting powder in their houses, and that because of these facts Mr. Brown charged the insured a rate of insurance higher than the customary rate for tenement buildings. There was no proof that thé insured knew that she had paid more than an ordinary rate for her insurance, and there was nothing on the face of the policy that showed ,it. Other testimony was admitted to prove that dynamite and gunpowder are more powerful explosives than blasting powder. In the charge to the jury, the trial court said:
“Now, gentlemen, it is alleged that blasting powder was included among these articles by the term ‘other explosives.’ Ordinarily it is the duty of a court to construe a written instrument, and instruct the jury what the terms mean. But in this case, under the facts and-proofs here, bearing in mind the words of the policy and the testimony of Mr. Brown in reference to this property being used as a miners’ house, and the testimony that miners are in the habit of keeping blasting powder on the premises, and also the testimony in regard to the fact that an extra charge (if such he the case) was made in this case by reason of the fact that it was a miners’ residence, we have decided to leave it to you, as a question of fact for yon to determine, whether, under the evidence and the facts proven here, blasting powder is included in tbe term ‘other explosives.’ In other words, whether it was the intention of the insurance company, when it issued this policy through Mr. Brown, to provide therein that, if blasting powder was kept, used, or allowed on the premises, the policy was to be void and of no effect.”
If the language of the policy on the point of keeping blasting powder on the insured premises is obscure, it was proper to admit parol testimony to explain its meaning, and to submit to the jury, as a question of fact, any disputed question concerning its meaning. Otherwise, as stated by the court in the charge, it was the duty of the court to construe the language. The counsel for the defendant in error .contend that the proof that blasting powder is an explosive of lower power than dynamite or gunpowder requires the words “or other explosives” to [963]*963be limited in meaning so that they shall include no substance of lower explosive power than gunpowder. But we think that such an applica*tion of the maxim “noscitur a sociis” is too narrow. The general words “or other explosives” are associated not alone with dynamite and gunpowder, but also with benzine, benzole, ether, fireworks, gasoline, Greek fire, naptha, and nitro-glycerine. For aught that appears in the record of the case, some of the specifically prohibited substances are explosives of lower power than dynamite or gunpowder, or even than blasting powder. Greek fire, for example, is a term that was applied to explosives for centuries before the invention of gunpowder or blasting powder. In the absence of proofs on the point, it is fair to assume that Greek fire is an explosive of lower degree than gunpowder or blasting powder. There is no evidence to show the explosive power of benzine, benzole, ether, gasoline, or naptha, as compared with that of blasting powder. The relative explosive powers of these substances is not a matter of common knowledge. If blasting powder is less dangerous than some of them, but more dangerous than others, it is included in the general words as ejusdem generis with the substances that are specifically named. If its explosive power is of a lower degree than that of any of the substances specifically named, and if, for that reason, it is not ejusdem generis with the substances specifically named (a point on which no opinion is expressed), then, since the general words in their literal and natural meaning include blasting powder, the burden was on the insured to show its lower explosive power. To hold, under the present proofs, that the general words “or other explosives” do not include blasting powder, merely because it is a less dangerous explosive than dynamite' or gunpowder, when it may be more dangerous than Greek fire, benzine, benzole, ether, gasoline, or naptha, is virtually to decide arbitrarily that no meaning or effect shall be given to the general words. We are satisfied that this cannot be done, and that, as the proofs stand, the general words include blasting powder.
Another point relied upon by the counsel of the insured is that the jury must have concluded that, when Mr. Brown delivered the policy to the plaintiff, he knew the building was soon to be occupied by miners, and that it was the custom of miners to keep blasting powder in their houses, and that, for these reasons, he charged a higher rate of insurance than he otherwise would have charged. Therefore, it is argued, the jury must have found that Mr. Brown intended that blasting powder should be excluded from the list of explosives which the policy prohibited the insured from keeping on the premises. The parol testimony offered had also for its purpose the proving of this alleged intention, notwithstanding the express provision of the policy that no agent of the insurer should have the power to waive any provisions of the policy, unless the waiver should be indorsed thereon. Such testimony was not admissible, unless, in the circumstances stated, the court could properly permit the jury to search elsewhere than in the language of the policy for the intention of the parties. No fraud or mutual mistake of facts is alleged. Assuming that the words “or other explosives” include blasting powder, the proposition is that the contract between the parties may be shown by parol testimony to have been something different from that expressed in the policy. While [964]*964'cases may be cited in which parol testimony has been allowed "to modify the terms of policies of insurance, even where those policies havé been ■free from ambiguity or obscurity and from fraud or mistake, the rule to be applied by our federal courts, at least, in the construction of such instruments, is the same as that applied in the construction of other written contracts.
In Assurance Company v. Building Association, 183 U. S. 308, at page 331, 22 Sup. Ct. 133, at page 141, 46 L. Ed. 213, Mr. Justice ■ Shiras .quoted, with approval, the following language in another case:
“To except policies of insurance out of the class of contracts to which they belong, and deny them tbe protection of the rule of law that a contract which is put in writing shall not be altered or varied by parol evidence of the contract the parties intended to make, as distinguished from what appears, by the written contract, to be that which they have in fact made, is a violation of the principle that will open the door to the grossest frauds. * * * A court of law can do nothing but enforce the contract as the parties have made it. • The legal rule that in courts of law the written contract shall be regarded as the sole repository of the intentions of the parties, and that its terms cannot he changed by parol testimony, is of the utmost importance in the trial of jury eases,, and can never be departed from without the risk of disastrous • consequences to the rights of parties.”
• And on page 361 of 183 U. S., page 153 of 22 Sup. Ct. (46 L. Ed. 213), he declared that:
“Contracts in writing, if in unambiguous terms, must he permitted to speak for themselves, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts,” and that “this principle is applicable to cases of insurance contracts as fully as to contracts on other subjects.”
To the same effect, see Modern Woodmen of America v. Tevis, 117 Fed. 372-375, 54 C. C. A. 293, and Connecticut Fire Insurance Co. v. Buchanan, 141 Fed. 877, and especially pages 895 to 897, 73 C. C. A. 111, 4 L. R. A. (N. S.) 758.
We think the policy in suit prohibited the keeping of blasting powder on the insured premises, that parol testimony was improperly admitted to vary the terms of the policy, and that the trial court should have directed a verdict for the defendant in accordance with its request.
The judgment of the Circuit Court is therefore reversed, with costs.