"Omitting the preliminary and nonessential allegations of appellee's petition, that part of same material to the point now under consideration is as follows:
"For cause of action plaintiff shows to the court: That heretofore, to wit, Upon the 28th
day of November, A. D., 1917, plaintiff was the wife of one William Wilkes, now deceased; that the defendant on said day, in consideration of the payment by the said William Wilkes, to the defendant, of the premium demanded for same, executed and delivered to said William Wilkes its certain policy of life insurance in writing, being No. 39553, whereby it insured the life of said William Wilkes, and agreed to pay this plaintiff the sum of $5,000 in the event of the death of the said William Wilkes during the time said policy of insurance was in force; that at the date of the death of the said William Wilkes all premiums due the defendant by him on account of the issuance of said policy had been paid, and the same was then and there in full force and effect. Upon the same day the defendant delivered to the said William Wilkes its supplemental policy No. A 39553, which constituted and was a part of the said policy, No. 39553, which said supplemental policy contained a double indemnity clause, which provided that, if the said William Wilkes, the insured under policy No. 39553 of said company, during the premium paying period of said policy, and before the insured shall have attained the age of 60 years, and while no premium is in default on said policy, and the said supplemental policy being in force, shall sustain bodily injury, effected directly through external, violent, and accidental means exclusively and independently of all other causes, which should, within 90 days of the event causing accident, result in the death of the said insured, the defendant company, in case of such accidental death, would pay to the beneficiary under said policy, upon the surrender of such policy and supplemental policy, double the face of said policy, making the total payable $10,000. The plaintiff alleges that the said William Wilkes, deceased, being the insured, under policy No. 39553, issued by the defendant, and during the premium paying period of said policy, and while he was under the age of 60 years, and while no premium was in default on said policy, and while said supplemental policy was in full force and effect, did, on the 19th day of December, A. D. 1917, sustain bodily injury, effected directly through external, violent, and accidental means, i. e., by reason of accidental discharge of pistol or revolver in hands of deceased, exclusively and independently of all other causes, which did on said day result in the death of the said William Wilkes, and the defendant, upon his said death, by such accidental means, then and there became bound and obligated and promised to pay to the plaintiff the beneficiary named in said policy and said supplemental policy in the sum of $10,000.
"(2) That the said William Wilkes, as aforesaid, died on the 19th day of December, A. D. 1917, by said accidental means as aforesaid, and up to the time of his death he had performed all the agreements which he had made with respect to said policy and said supplemental policy, and all premiums had been duly paid, and he had in all respects complied with the conditions and provisions of said policy; that within a reasonable time after the death of said William Wilkes, as aforesaid, the plaintiff through her attorneys made request of defendant to furnish her with blanks upon which to prepare proper proofs of death; that defendant failed and refused to furnish the same, and the plaintiff caused to be prepared an affidavit showing the death of the said William Wilkes by the means aforesaid, and did, within a reasonable time, forward the same to this defendant; that payment of the amount due under said policy and supplemental policy was in due time properly and legally demanded, the said demand being for the sum of $10,000, the amount due under the terms of said policy and said supplemental policy; that defendant has failed and refused, and still fails and refuses, to pay the same, or any part thereof, and is justly indebted to the plaintiff in the sum of $10,000, together with legal interest thereon from the date of death of the said William Wilkes.
"Appellee further averred facts necessary to show a basis for the recovery of 12 per cent. damages, together with a reasonable attorney's fee, which was alleged to be the sum of $3,000. The prayer of appellee's petition is as follows: `Wherefore plaintiff prays the court that the defendant be cited in terms of law, and in the manner prescribed by law, to appear and answer this petition, and that upon final hearing hereof she have judgment for the said sum of $10,000, together with legal interest thereon, and for said statutory damages,' etc."
"Defendant for special answer herein admits that it is a corporation, organized under the laws of the state of Illinois, for the purpose of transacting the business of life and accident and health insurance; that on the 28th day of November, 1917, it issued to William Wilkes of Post, Tex., its life policy for $5,000, such policy being No. 39553, and that said policy was issued upon the written application of the said William Wilkes therefor; that on the said 28th day of November, 1917, it issued to said William Wilkes its supplemental policy No. A 39553, as part of said policy No. 39553.
"This defendant, further answering, says that in said policy No. 39553, so issued to the said William Wilkes, it is provided, among other things, as follows, to wit:
"`Should death occur as the result of any illegal act or from suicide, sane or insane, intentional or unintentional, within two years from date hereof, the liability of the company shall be limited to the premiums actually paid thereon.'
"That in said supplemental policy No. A 39553 is the following provisions, to wit:
"`It is hereby agreed, that if William Wilkes, by occupation grain and feed merchant, the insured under policy No. 39553, of said company, during the premium paying period of said policy, and before the insured shall have attained the age of sixty (60) years, and while no premium is in default of said policy, the supplemental policy being in force, shall sustain bodily injury directly through external, violent and accidental means (suicide, sane or insane, or any attempt thereat, sane or insane, not included) exclusively and independently of all other causes which shall within ninety (90) days of the event causing the accident, result in the death of the said insured, the company in case of such accidental death, will pay to the beneficiary or beneficiaries under said policy upon surrender of said policy and this supplemental policy, double the face of said policy
making the amount payable ten thousand ($10,000) dollars.'
"And the defendant says that the death of said insured resulted from external and violent means, and that defendant would be liable therefor except for the fact that on the 19th day of December, 1917, at his home in the city of Post, Garza county, Tex., the said insured, William Wilkes, committed suicide by shooting himself with a revolver, the bullet passing through his body through or near the heart of the said William Wilkes; his death resulting almost instantaneously therefrom.
"Wherefore, defendant pleading the terms and conditions of the policy above quoted, says that it is not liable on the said policy or the supplemental policy except to the extent of the premium paid thereon, and as to such premium it is not liable because the said William Wilkes never made any payment on the premium on said policy No. 39553; that on the 20th day of October, 1917, the said William Wilkes made application to the defendant for said policy and supplemental policy, and that on said date William Wilkes executed to Ben Thorp, the state manager of the defendant, his note for $168.75, the amount of the first annual premium, payable 90 days after date, and that said William Wilkes never paid said note, or any part thereof, to this defendant, nor has any one else paid the same, or any part thereof, and that its said state manager, the said Ben Thorp, on or about the 25th day of January, 1918, offered and tendered to plaintiff the said note, which the plaintiff refused to accept, and that on or about said date it was, and ever since has been, ready and willing to return and deliver to plaintiff the said note and is still ready and willing to return the said note to the plaintiff, which said note is deposited with the clerk of the court for the benefit of plaintiff.
"Defendant says that because of the suicide of the said William Wilkes the only liability on the part of this defendant to said plaintiff is to return said note, which before the filing of the suit it offered to do, and still offers to do.
"The defendant, further answering, says that it is not liable under the terms of said supplemental policy No. A 39553 in any sum whatever because the said insured, William Wilkes, committed suicide, as by any supplemental policy liability for `suicide, sane or insane,' or any attempt thereat, `sane or insane,' was not included in or...
