LEADING CASES IN THE COMMON LAW

Professor Brian Simpson (1931 - 2011) taught at the University of Michigan Law School from 1987 until his retirement in 2009.    A British citizen and a graduate of Oxford University, the Guardian said this about Simpson in 2011 its obituary following Simpson's death on January 10, 2011:

"Although his academic career was latterly spent mostly in the U.S., he remained a British liberal to his core and never became an American citizen.  He tended to spend the winter and spring in Ann Arbor, Michigan, but for the summer and autumn he was often at the then Public Record Office, now the National Archives, in Kew, west London.  He was elected a fellow of the British Academy in 1983, a fellow of the American Academy of Arts and Science in 1993, was visiting professor of legal science at Cambridge Universtiy 1993-94, and in 2001 was appointed an honorary Q.C."

The book under consideration, Leading Cases in the Common Law (1995) posits the thesis that there is no "science of law" and that leading cases must be studied in their historical and cultural context to really understand the rationale for the decisions. 

This is fascinating reading.  Starting with Wolfe v. Shelley (1581), which produced "The Rule in Shelley's Case" that generations of law students have been tortured with, Professor Simpson seeks to find the story behind the story.  Shelley's case did not really have anything to do with some philosophical rule regarding wills and deeds and had everything to do with Queen Elizabeth I and her government wanting to disinherit a wealthy Catholic recusant son in favor of the deceased's Protestant grandson who had the Queen's favor.  Of no real significance at the time, it only became "a leading case" because one of the winning lawyers, Edward Coke, reported the case in the series of case reports which he published.

Professor Simpson goes through and tells "the story behind the story" on a number of famous common law cases, beginning with Wolfe v. Shelley (1581) and ending with Carlill v. Carbolic Smoke Ball Company (1893) which generations of law students have been tortured with to understand the acceptance of unilateral contracts.

This is fascinating reading.  Every Anglo-American lawyer interested in the history of the Common Law should read this book.  Five out of Five gavels.

Alfred William Brian Simpson, Q.C. (1931 - 2011)

Professor A.W. Brian Simpson's last Michigan Law School class

A DEATH AT CROOKED CREEK

In Mutual Life Insurance Company v. Hillmon, 145 U.S. 285 (1892), the Supreme Court created an entirely new exception to the hearsay rule.  The rule that a statement of future intention by the declarant is not hearsay did not exist in the law of evidence prior to the Hillmon case.

John Hillmon

Hillmon involved a Kansas cowboy, John Hillmon, who left his new bride in the late 1870s to pursue establishing his own cattle ranch.  Before leaving his home in Lawrence, Kansas, Hillmon purchased $25,000 worth of life insurance from three different insurance companies.  ($25,000 was the equivalent of approximately $500,000 in current dollars.)  On the Kansas prairie, at a place called Crooked Creek, Hillmon was allegedly accidentally shot by his business partner.

Frederick Adolph Walters

Agents and attorneys of the insurance companies almost immediately sprang into action.  Although a coroner's inquest was held in Medicine Lodge, Kansas and determined that the dead man was John Hillmon and that he had died by accidental death, the insurance men had the body exhumed and brought to Lawrence where another inquest was held.  (It was later revealed that the county attorney, the coroner and the jurors had been paid by the insurance companies). This time, the coroner's jury found that the body was of an unknown individual who had been killed through foul play.

The corpse.  Is it John Hillmon or Hillmon's victim.

Sallie Hillmon, John's widow, filed suit in U.S. District Court against the insurance companies for breach of contract.  The insurance companies maintained that the corpse was actually the body of Frederick Adolph Walters, a cigar maker who had drifted to Kansas from Ft. Madison, Iowa.  Alvina Kasten, Walters fiancee had received a letter from Walters in which he told her that he was in Wichita and had been hired by a man named Hillmon to herd sheep because Hillmon had "promised me more wages than I could make at anything else."  Walters had disappeared and never been heard from again.  The insurance companies alleged that Walters had been killed by Hillmon and then passed off as Hillmon's body to collect the insurance proceeds.

Professor Marianne "Mimi" Wesson

The case eventually resulted in six trials, two resulting in verdicts for the Plaintiff which were both reversed by the Supreme Court, and four hung juries.

Professor Wesson and friend.

This very interesting book was written by University of Colorado law professor Marianne "Mimi" Wesson.  Professor Wesson is also the author of a series of mystery novels.  Where the historical record is silent, Professor Wesson has filled in the gaps with fictional accounts of what may have happened.

The book also recounts the efforts of Professor Wesson to identify the body of the man who was killed at Crooked Creek and solve the mystery.  Gaining permission to exhume the body, DNA samples were obtained from the nearest living relatives of Hillmon and Walters.  Unfortunately, water had seeped into the grave and only bone fragments remained from which no usable DNA could be extracted.  However, an expert compared photographs of the living Hillmon and Walters with photographs of the corpse and concluded that although the body might be someone other than Hillmon,  it was definitely not Frederick Walters as contended by the insurance companies in the six trials.

Professor Wesson at the grave of John Hillmon

Professor Wesson concludes that the U.S. Supreme Court created an entirely new rule of evidence just because they didn't like the jury's verdict and wanted an excuse to overturn the case.  The rule has been heavily criticized in other cases.  Why does a statement of intention have more reliability than any other hearsay statement?  As one reviewer of this book has said, should the statement "I intend to do my homework tonight," really  be admissible as evidence to prove that I did my homework but the dog ate it?

A Death at Crooked Creek is a really good read.  Five out of five gavels.