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Western Agricultural Insurance Co. v. Brown11/10/1998
tandard for measuring insanity. As a consequence, the medical community now acknowledges that it cannot discern whether an offender could not or would not control himself. See Richard J. Bonnie, The Moral Basis of the Insanity Defense, 69 A.B.A.J. 194, 196 (1983). Since we cannot know with any confidence whether a person committing a violent act suffers from an incapacity to "govern his conduct in accordance with reason" due to mental derangement, or whether he just chooses not to regulate his conduct, tests that are based on measures of volition are futile and invite deception and fabrication. The acts of one who knows the right but chooses the wrong cannot be indemnified, consistent with well-established public policy which we reaffirm here.
Since the tortfeasor in Lyons was M'Naghten insane, borrowing the volitional test from the New Jersey Supreme Court was gratuitous. Although we have continued to cite the Lyons dictum approvingly since 1981, I would abandon it.
JON W. THOMPSON, Judge
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