'Tenth. For a separate and distinct defense to the causes of action alleged in the complaint, in addition to the matters and things hereinbefore set forth, the defendant avers that it was provided in and by the terms and conditions of said policies of insurance, among other things, as follows: 'If the assured shall keep gunpowder, fire-works, nitro-glycerine, phosphorus, saltpeter, nitrate of soda, petroleum, naphtha, gasoline, benzine, benzole, or benzine varnish, or keep or use camphene, spirit gas, or any burning fluid or chemical oils, without written permission in this policy, then and in every such case this policy shall be void.' And, further: 'That petroleum, rock-earth, coal, kerosene, or carbon oils of any description, whether crude of refined; benzine, benzole, naphtha, camphene, spirit gas, burning fluid, turpentine, gasoline, phosgene; or any other inflammable liquid, are not to be stored, used, kept, or allowed on the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, excepting the use of refined coal, Kerosene, or other carbon oil for lights, if the same is drawn and the lamps filled by daylight. Otherwise this policy shall be null and void.' And the defendant avers that the said conditions of insurance were broken and violated on the part of the plaintiff, among other things, in that, without written permission of the defendants indorsed on said policies or otherwise, there were stored, used, kept, and allowed on the insured premises mentioned and described in said policies, benzine or other inflammable burning fluids or liquids, prohibited by said policies; and defendant avers that the fire mentioned and referred to in the complaint originated and was caused by such storing, using, keeping, and allowance of such prohibited articles on said insured premises; and defendant avers that it is advised and believes that, by reason of the premises, the said policies became and were null and void.'
Each of the two policies, after the description of the premises insured, contained the following clause: 'Privilege to use gasoline gas; gasometer, blower, and generator being under-ground about 60 feet from main building, in vault; no heat employed in process.' Among the conditions in the body of the policies is also the following: 'Petroleum, rock-earth, coal, kerosene, or carbon oils of any description, whether crude or refined; benzine, benzole, naphtha, camphene, spirit gas, burning fluid, turpentine, gasoline, phosgene; or any other inflammable liquid,-are not to be stored, used, kept, or allowed on the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, excepting the use of refined coal, kerosene, or other carbon oil for lights, if the same is drawn and the lamps filled by daylight. Otherwise this policy shall be null and void.' To the first policy there was attached the following: 'Privileged to use kerosene oil for lights, lamps to be filled and trimmed by daylight only.' And also the following: 'Privileged to keep not exceeding 5 barrels of kerosene oil on said premises.' To the second policy the first only of the foregoing privileges was attached.