Colonial Life & Acc. Ins. Co. v. Wagner

• Decision Date: 01 May 1964
• Citation: 380 S.W.2d 224
• Court: United States State Supreme Court — District of Kentucky
• Parties: COLONIAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. Zelda WAGNER, Appellee.

Page 224

380 S.W.2d 224

COLONIAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. Zelda WAGNER, Appellee.

Court of Appeals of Kentucky.

May 1, 1964.

Rehearing Denied Sept. 18, 1964.

Stoll, Keenon & Park, Lexington, for appellant.

Frank G. Gilliam, William S. Black Lexington, for appellee.

MOREMEN, Judge.

On January 11, 1960, Warren G. Shockley walked into the Phoenix Hotel in Lexington where he shot and killed Warren F. Wagner, an employee of the hotel. Shockley was indicted for murder. At his trial on this charge, one of his defenses was that he was of unsound mind and without sufficient reason to know right from wrong, or that as a result of mental unsoundness he had not had sufficient will power to govern his action because of some insane impulse which he could not resist or control. The court instructed on the charge of murder, mental capacity to commit the crime and voluntary manslaughter. The jury found him guilty of voluntary manslaughter and fixed his punishment at ten years' confinement. Shockley had contended during the trial that Wagner had been associating with his wife for a period of about seven months despite the fact that he had warned him on several occasions to discontinue seeing her.

At the time of his death, Wagner was insured under a group policy issued by appellant, Colonial Life & Accident Insurance Company, and his widow, appellee, Zelda Wagner, was the beneficiary. She sued on the policy which contained this provision: 'The insurance under this certificate shall not cover death or other loss caused or contributed to * * * (4) by injuries intentionally inflicted upon the Insured Employee by any other person.' Upon trial of the civil suit the contention was again made that the condition of Shockley's mind at the time he killed Wagner was such that he could not intentionally commit the offense. In support of this contention appellee testified that Shockley had made a declaration to her relative to his state of mind, that prior to the shooting 'he got spells where he did not know what he was doing,' and that he once 'found himself there (at the deceased's place of employment) and when he came to himself he was looking around the corner at my husband * * * and he didn't know what to do, but he left the place as quickly as he could.'

The deposition of Shockley was taken and he attempted to explain the condition of his mind at that time, as follows:

'Q. Did you have knowledge of what you were doing or the effect of your act? A. That's hard to answer. I suppose if I had I wouldn't have done it.

'Q. Are you able to tell what was your state or condition of mind at the time this occurred? A. Well, I don't know how you would put it. Some one can keep on pushing you and drive you to do something. I warned the fellow to leave her alone. I just had no control.

'Q. Were you beyond any self-control at the time? A. I don't know.'

However, when asked whether or not the killing was intentional, Shockley repeatedly replied that it was.

Dr. Graham Dimmick, professor of applied psychology at the University of Kentucky, and who had also engaged in the practice of clinical psychology, testified that he had examined Shockley for approximately two hours after he had been charged with the killing of Wagner. In response to a hypothetical question based upon that interview and upon other evidence which had been introduced at the trial as to whether Warren Shockley was, at the time of the shooting, capable of forming a rational intention to commit the act, Dr. Dimmick answered that in his opinion he was not capable of having a rational intention to do what he did. Dr. Dimmick also testified under cross-examination:

'Q. You didn't think Warren Shockley was insane, did you? A. I did not say that.

'Q. And you did not think so at the time of your interview, did you? A. Not insane, as you refer to it, no.

'Q. Do you know what Warren Shockley, in giving his deposition, swore under oath, when he was asked this question: 'The injury which you inflicted on...