
    Zelda WAGNER, Appellant, v. COLONIAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Frank G. Gilliam, William S. Black, Lexington, for appellant.
    Robert M. Odear, Leslie W. Morris, II, Stoll, Keenon & Park, Lexington, for ap-pellee.
   WADDILL, Commissioner.

This is the second appeal of this case. On the first appeal we reversed the judgment in favor of the beneficiary of the insurance policy in question and held, in summary, that the beneficiary was not entitled to recover because “Under the terms of the policy the act [of shooting the assured was not accidental but] was intentional and therefore specifically excluded from the coverage.” Colonial Life & Accident Insurance Company v. Wagner, Ky., 380 S.W.2d 224.

Following remand of the case to the circuit court, the Insurance Company, relying upon the law of the case set forth in our former opinion, moved for summary judgment. CR 56.02. In response to this motion the affidavit of Dr. Graham Dim-mick, a psychologist was filed wherein he stated that Warren Shockley, the person who shot and killed the assured, was, at the time he committed this act, “temporarily insane” and therefore not mentally capable of distinguishing between “right and wrong.” The circuit court sustained the motion for summary judgment and entered judgment accordingly.

On the present appeal it is contended that an injury inflicted upon another by an insane person cannot be held as a matter of law to be intentional and, therefore, the question of whether Shockley had the mental capacity to intentionally injure the assured was for the jury.

The contention is now unavailing since our former opinion in this case determined that, irrespective of whether Shockley was insane, the gunshot wounds which caused the death of the assured were “intentionally inflicted” as this term is used in the policy.

The judgment is affirmed.  