Mut. Life Ins. Co. of N.Y. v. Hillmon

Mut. Life Ins. Co. of N.Y. v. Hillmon
Supreme Court of the United States
Decided May 16, 1892
Full case name	Mutual Life Insurance Company of New York v. Hillmon, No. 182; New York Life Insurance Company v. Hillmon, No. 183; Connecticut Mutual Life Insurance Company of Hartford, Connecticut v. Hillmon, No. 184
Citations	145 U.S. 285 (more) 12 S. Ct. 909, 36 L. Ed. 706
Prior history	C.C.D. Kan.
Holding
(1) The three consolidated defendants should have received three peremptory challenges each, rather than three jointly (2) Walter's letter, though hearsay and not a business record, should have been admitted as a statement of intent
Court membership
Chief Justice Melville Fuller Associate Justices Stephen J. Field · Joseph P. Bradley John M. Harlan · Horace Gray Samuel Blatchford · Lucius Q.C. Lamar II David J. Brewer · Henry B. Brown
Case opinions
Majority	Gray, joined by unanimous
Laws applied
28 U.S.C. § 734

Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285 (1892),^[1] is a landmark U.S. Supreme Court precedent, creating a hearsay exception for statements of intent. Hillmon was authored by Justice Horace Gray and its holding has been codified in Federal Rule of Evidence 803(3), as well as adopted by the laws of many other jurisdictions.

The insurance dispute turned on the identity of the corpse: John Hillmon's estate contended that corpse was Hillmon, who was insured for $25,000; the insurance companies claimed that the corpse was Frederick Walters. The Court reversed a jury verdict for the estate, holding that letters (purportedly) written by Walters declaring an intention to travel with Hillmon, should have been admitted.

The disputed corpse was exhumed in 2007. The DNA-testing results were inconclusive, but other forensic methods indicated that the disputed corpse was more likely Hillmon than Walters.

Background

John Hillmon

John Wesley Hillmon, a Civil War veteran, lived in 1878 in Lawrence, Kansas, where he married a young waitress named Sallie Quinn in the fall of that year.^[2] Hillmon had worked as a ranch hand, buffalo hunter, and miner, but had never made much money.^[3] Mere weeks after his wedding he set off on a journey west, leaving Sallie behind and saying he intended to find some land where they could homestead and start a cattle ranch.^[2] Hillmon’s companion as he set off for parts further west was an old friend named John Brown, with whom he had worked before.^[2]

Before leaving home, Hillmon purchased $25,000 of life insurance (that would be just over $550,000 in 2008); his new wife’s cousin, Levi Baldwin, contributed to paying the premiums, which Hillmon could not have afforded on his own.^[4] The amount of insurance was so large for a man of ordinary means to carry that Hillmon had to go to three different insurance companies to procure policies totaling $25,000.^[4] Hillmon had to be examined by several doctors to obtain the insurance, and one of the companies required him to submit to a vaccination against smallpox.^[2]

Hillmon and Brown undertook their journey west for the first time in December 1878, traveling as far as the southwest Kansas town of Medicine Lodge, but cold weather eventually drove them back^[2] Brown remained in Wichita for a few weeks while Hillmon went home to Sallie in Lawrence; it was during this time he received the smallpox vaccination.^[2] In February 1879 he left again, and met up with Brown in Wichita; from there the men traveled roughly southwest, camping out most of the time to avoid the expense of hotels.^[2] The afternoon of March 17, 1879 the two men stopped at a camp site sometimes called Crooked Creek, not too far from the town of Medicine Lodge.^[2] On the evening of March 17, John Brown knocked on the door of a nearby dwelling to report the accidental death of his traveling companion.^[5]

The neighbor rode into Medicine Lodge to summon the coroner, and eventually the body was brought back to the town for an inquest.^[5] This would be the second inquest into the death, as the first was held at the campsite immediately after the death—a third, held some weeks later in Lawrence, would be much less impartial.^[5] At the Medicine Lodge inquest, Brown testified that he had discharged their rifle accidentally as he was unloading it from the wagon, and that the bullet had gone straight into Hillmon’s head as he knelt to tend their camp fire.^[5] The corpse was dressed in John Hillmon’s clothes and boots.^[5] At the inquest, witnesses from Medicine Lodge who had been in the company of Brown and Hillmon testified that the corpse was the man they had known as Hillmon; most of them remembered Hillmon because he had passed through their town on the earlier trip.^[6] The Medicine Lodge inquest returned a verdict of death by misadventure, or accidental death.^[7]

The body was buried in Medicine Lodge and Sallie requested payment of the life insurance proceeds from the three companies that had issued the policies.^[8] The insurance companies’ suspicions were piqued, however, and they began to investigate the Hillmon claim.^[5] At this time, life insurance fraud was not uncommon—there had been several cases in which people had bought large amounts of insurance, killed someone, and disguised the corpse as the policy holder, who would be somewhere in hiding.^[9] (In fact, when the Hillmon case reached the Supreme Court, one of the Justices would refer to the case as one of “graveyard insurance,” meaning fraud.)^[10] Believing they were being swindled, the companies dispatched their agents to Medicine Lodge immediately.^[5]

The agents insisted that the body be disinterred and returned to Lawrence, where it was delivered to a Lawrence undertaking establishment and inspected by dozens of persons who had known John Hillmon in life.^[5] The Douglas County coroner convened another inquest; although performed by the state-employed Douglas County coroner, conducted by the County Attorney and his assistant, with Douglas County jurors, this inquest (the coroner much later admitted) was wholly funded by the insurance companies, who paid the coroner, the witnesses, and the jurors.^[11] The chief controversies at this inquest were the differences between the corpse’s and Hillmon’s height and teeth, and the smallpox vaccination scar that the corpse carried on its shoulder.^[12] Sallie Quinn Hillmon and her cousin Levi Baldwin testified that the body belonged to John Hillmon, as did a few other acquaintances.^[12] Other witnesses testified emphatically that it was not and could not have been Hillmon.^[12] The corpse was five feet, eleven inches tall; some said it couldn’t be Hillmon because Hillmon was at least two inches shorter, but others said he was exactly that height.^[13] Witnesses testified that Hillmon had one or more rotten teeth, while the corpse’s teeth were excellent.^[12] But some witnesses testified that Hillmon too had fine teeth.^[12] The corpse had a smallpox vaccination scar exactly where Hillmon had been vaccinated, but some of the insurance company doctors said that the scar on the corpse’s arm was too fresh to be from the vaccination that had been given to Hillmon some weeks prior.^[12] This inquest, unlike the Medicine Lodge inquest, returned a finding that the death was of a “person unknown,” and had been caused “feloniously by J.H. Brown.”^[14]

John Brown

John Brown was John Hillmon’s traveling companion. In each of the inquests he told the same story of an accidental shooting. But after the Douglas County inquest’s finding, he went to stay at his brother’s home to Missouri, and soon afterward his story changed.^[12] Over the summer of 1879, Brown was approached several times by an attorney who claimed he had been hired by Brown’s father to represent the son and protect him from the consequences of the second inquest verdict.^[15] But the attorney, J.R. Buchan, was really retained by the insurance companies.^[16] It is undisputed that Brown then signed an affidavit prepared by Buchan that was wholly inconsistent with his previous tale.^[17] Brown’s new story stated that he and Hillmon had picked up a traveler called Joe, whose last name sounded like Burgess or Berkley.^[18] This traveler, according to the affidavit, was naïve and agreed to travel unseen, hiding at times under the blanket in the wagon so people would only note two men traveling together.^[18] The document went on to say that “Joe” was chosen because he was a passable look-a-like for Hillmon, and that Hillmon had inoculated the intended victim by using a pocket knife and serum from Hillmon’s own vaccination site.^[18]

Brown’s affidavit stated that it was Hillmon who murdered the Joe Burgess/Berkley and switched clothes with the victim, as well as planting his own journal in the victim’s inside jacket pocket.^[18] The affidavit also described a conversation Brown had with Sallie, in which she said she knew of Hillmon’s whereabouts and that he was not dead.^[19] After Buchan showed this affidavit to Mrs. Hillmon, in an unsuccessful effort to persuade her to withdraw her insurance claims, Brown tore up it up and threw it in the stove.^[20] (Buchan retrieved it and repaired it for use in court later, making clear that his real client was the insurance companies.^[21]) Later, Brown further repudiated this statement, and he testified in 1882 that he had only signed the affidavit because Buchan had told him he would be arrested and convicted of murder if he refused.^[22]

Frederick Walters

The crux of the insurance company's case was a letter headed "Wichita, Kansas, March 1, 1879" and beginning "Dearest Alvina." It appeared to be from Frederick Adolph Walters to his fiancée, Miss Alvina Kasten.^[23] Walters and Kasten had been sweethearts in Fort Madison Iowa, but Walters had left his Iowa home in the spring of the previous year to pursue his trade as an itinerant cigarmaker.^[24] Alvina Katsen, in a pretrial deposition, swore that she had received this letter from the post office early in March 1879.^[25] In the letter, Walters wrote that he planned to leave Wichita “with a certain Mr. Hillmon, a sheep-trader, for Colorado or parts unknown to me.”^[26] It was this intention to travel with Mr. Hillmon that was crucial to the 1892 decision. According to Alivina Kasten and members of the Walters family, this was the last correspondence any of them received from Frederick, and they had not seen him since.^[27]

Prior history

It became clear to Sallie that the insurance companies were not going to pay, so she filed suit in 1880.^[28] Her case went to trial in 1882; it would eventually be tried six times.^[4] The Hillmon litigation lasted for almost 25 years, and would be argued in front of the Supreme Court twice. The first two trials, in 1882 and 1885, both produced hung juries.^[4] The third trial produced a verdict for Sallie Hillmon, possibly because of the trial judge’s exclusion of the insurance companies’ most important piece of evidence: the “Dearest Alvina” letter.^[29]

Judge O.P. Shiras, presiding in the third trial of the Hillmon case, had excluded this letter from the jury’s knowledge, agreeing with Sallie Hillmon’s lawyers that it was hearsay.^[30] (Her lawyers apparently had not thought to make this objection in the first two trials.) The letter certainly was hearsay according to the usual definition: an out of court statement offered in court to prove the truth of the matter asserted. There were certain recognized exceptions to the hearsay rule, but the Dearest Alvina letter did not seem to qualify for any of them. The insurance companies’ lawyers could do no better than to argue that it was a business record; there was such an exception to the hearsay rule, but a love letter certainly did not satisfy its requirements.^[31]

Opinion

After losing the third trial to Sallie Hillmon, the companies pursued an appeal to the United States Supreme Court.^[32] That Court overturned the jury’s verdict for Sallie, ruling that declarations of intention are ‘credible evidence’ of said intention, and that such statements of intention are thus admissible as exceptions to the hearsay rule.^[33] In fact the Court held that often such evidence is “indispensible to the due administration of justice” and the truth of such evidence is an evidentiary issue to be decided by the jury.^[34]

This decision was quite novel, for there was very little authority for the proposition that statements of intention qualified as an exception to the hearsay rule.^[35] Most hearsay exceptions (then and now) rest on the belief that certain kinds of statements are unlikely to be false even if made without benefit of oath and cross-examination.^[36]

It was Walters’ expressed intention to go traveling with Hillmon that was dispositive of the Court’s 1892 opinion.^[37] The Court held that the declarations in the letters tended to prove Walters’ “intention of going, and going with Hillmon,” which would make it more plausible that Walters’ “did go and that he went with Hillmon,” which in turn would increase the likelihood that the corpse and murder victim was Walters.^[34] The Court thought that admissibility of Frederick Adolph Walters’ letters could contribute to the circumstantial case presented by the defendants and “might properly influence the jury.”^[34]

Subsequent history

Even with the Dearest Alvina letter in evidence, the fourth trial of 1895 and the fifth trial of 1896 ended in hung juries.^[38] In the sixth trial matters became even more interesting with the testimony of a Leavenworth cigar factory owner, Arthur Simmons.^[39] Simmons testified that he had employed an F. Walters at his cigar making shop two months after Frederick Adolph Walters’ alleged death at Crooked Creek.^[40] He produced employment records and identified a picture of Frederick A. Walters as the Walters who was formerly in his employ.^[41] This evidence was persuasive to the jury and they returned a unanimous verdict for Sallie Hillmon.^[42] The insurance companies managed in 1903 to persuade the Supreme Court again to overturn Sallie Hillmon’s victory, on less memorable evidentiary grounds.^[42] But eventually all of the insurance companies settled with the widow, for the full face amount of the policies plus accumulated interest.^[42]

During the time of the trials, intermittent reports continued to surface in newspapers in Kansas and around the country heralding either the arrest or location of John Hillmon, usually at some deserted spot in Arizona, Utah, or New Mexico.^[43] Inevitably and almost immediately they were withdrawn or reported to be false.^[44] The attorneys for the insurance companies labored to disassociate themselves from these reports when they became implausible, but it seems clear the companies had a role in disseminating, from time to time, the story that John Hillmon was still alive.

Legacy

Modern investigation

In March 2006, with the help of attorney Mark Thornhill from the Kansas City, Missouri law firm of Spencer, Fane, Britt and Browne, Professors Wesson and Dennis Van Gerven of the University of Colorado obtained permission from a judge in Lawrence, Kansas to disinter the disputed remains, which were buried at Oak Hill Cemetery in that city. In May 2006, accompanied by a film crew, anthropology graduate students, and Hillmon family members, they excavated the grave, with the goal of using modern forensics to identify the body. A backhoe was used to remove the first couple of feet of soil, then shovels for the next few feet, and lastly hands and hand tools when it was decided that the potentially fragile remains might be too close to continue the use of larger tools. Once the diggers got down deep enough, an underground stream was discovered; it had been flowing through the body and the casket for an indeterminate amount of time. In fact there was not much casket left from the years of spring water flowing through the grave; only a few rusty coffin nails remained of the container.

After hours of careful digging, Van Gerven found bones. The remains were fragmented and eroded from long immersion in the wet ground, but 47 bone fragments and 5 teeth were removed from the grave. Since the fragmented nature of the remains made physical methods of identification impossible, the plan was to use DNA matching to determining if the bones belonged to John Hillmon. Professor Wesson had managed to track down John Hillmon’s half-brother’s grandson, Leray Hillmon, and procure a DNA sample. But, the bone that Van Gerven brought back to the University for testing did not contain sufficient human DNA to enable DNA testing. The water and the organisms that it harbored had consumed any human genetic material that might have resided in the remains.

Van Gerven and his colleagues were able to use Adobe Photoshop software to analyze the photographic evidence available: pictures of the living men John Hillmon and Frederick Adolph Walters, and photographs taken of the corpse during the Lawrence inquest. They used photographical superimposition, which is generally used for exclusion but can be used for “positive identification…if the morphological features are unique.” Van Gerven used the profile shot of the corpse in the coffin and superimposed it onto a pictures in life of John Hillmon and Frederick A. Walters using Adobe Photoshop. “The profile image of the corpse was then digitally rotated into a vertical axis matching the life photographs,” he explained in his report. Then the pictures were matched using standard anatomical points (the lower margin of the chin and a point at the top of the nasal bones between the eyes) in order to establish scale. The results: “The match between for life photo of Hillmon and the corpse is striking when the images are superimposed. The nasal profile of the two is a virtual mirror image. In addition, other features such as the hairline, position of the eyebrow, base of the nose, and lips also match precisely.” Van Gerven’s conclusion: that the pictures of the corpse in the coffin matched the pictures taken in life of John Hillmon and not the pictures of Frederick A. Walters.^[45]

Documentary film

A movie named Hillmon’s Bones was made to document the exhumation and resulting forensic determinations. Directed by Professor Ernesto Acevedo-Munoz of the University of Colorado, the film also tells the Hillmon story through interviews with Professors Wesson and Van Gerven, and the other participants in the research.

As an evidence precedent

Hillmon has been codified by Federal Rule of Evidence (FRE) 803(3), and has found its way into the evidence rules of all or nearly all American states, and has been adopted in international jurisdictions including England and Australia.^[46] FRE 803(3) makes hearsay admissible if it is "a statement of the declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed."^[47] The advisory committee comments make clear that Hillmon is the source of the exception.^[48]

The Hillmon exception has played a role in several notable cases, including one in which a man named Angelo Inciso was convicted of kidnapping and sentenced to seventy years in prison, largely on the evidence that the victim said, before taking leave of some friends, that he was “going to meet Angelo.”^[49] Some of the appellate judges in that case doubted the fairness of this outcome, but had to agree that it was compelled by the Hillmon doctrine.^[50] Professor Wesson has criticized Hillmon as an outcome-oriented decision and argued for its repeal.^[51]

Notes

1. ^ Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285 (1892).
2. ^ ^{a b c d e f g h} MacCracken, 1968, at 51.
3. ^ See the deposition of John Brown, see Transcript, No. 94, at 342-81.
4. ^ ^{a b c d} Hillmon, 145 U.S. at 286.
5. ^ ^{a b c d e f g h} MacCracken, 1968, at 52.
6. ^ McNeal, 2009, at 91.
7. ^ Lawrence Standard, Apr. 10, 1879, at 2.
8. ^ Hillmon, 145 U.S. at 286; MacCracken, 1968, at 52.
9. ^ MacCracken, 1968, at 51; Carleton, 1896, at 53.
10. ^ Maguire, 1925, at 711.
11. ^ Topeka Daily Capital, Feb. 16, 1895, at 6.
12. ^ ^{a b c d e f g} MacCracken, 1968, at 53.
13. ^ MacCracken, 1968, at 53.
14. ^ MacCracken, 1968, at 53; Murder Will Out!, Lawrence Standard, June 26, 1879, at 4.
15. ^ That Tooth, Leavenworth Times (Kan.), June 22, 1882, at 1; Transcript, No. 184, at 401 (deposition of John Brown); A Long Story, Leavenworth Times (Kan.), June 17, 1882, at 1.
16. ^ MacCracken, 1968, at 73; The Hillmon Case, Leavenworth Times (Kan.), June 14, 1885, at 4.
17. ^ MacCracken, 1968, at 73.
18. ^ ^{a b c d} Transcript, No. 184, at 400 (deposition of John Brown).
19. ^ Transcript, No. 184, at 416 (deposition of John Brown).
20. ^ Transcript, No. 184, at 457 (deposition of John Brown); How It Happened, Leavenworth Times (Kan.), June 20, 1882, at 1.
21. ^ MacCracken, 1968, at 73; The Hillmon Case, Topeka Daily Capital (Kan.), Mar. 2, 1888, at 4.
22. ^ Transcript, No. 184, at 401 (deposition of John Brown) ; MacCracken, 1968, at 74.
23. ^ Hillmon, 145 U.S. at 288.
24. ^ MacCracken, 1968, at 74; Mrs. Hillmon's Evidence to be Finished Today, Leavenworth Times, Oct. 25, 1899, at 4.
25. ^ Transcript, No. 184, at 1778; Was it Walters?, Leavenworth Times, June 29, 1882, at 4.
26. ^ Maguire, 1925, at 709.
27. ^ MacCracken, 1968, at 74.
28. ^ Hillmon, 145 U.S. at 285.
29. ^ Hillmon, 145 U.S. at 287.
30. ^ MacCracken, 1968, at 75.
31. ^ MacCracken, 1968, at 75; Maguire, 1925, at 711.
32. ^ MacCracken, 1968, at 75; Maguire, 1925, at 709.
33. ^ Maguire, 1925, at 710.
34. ^ ^{a b c} Hillmon, 145 U.S. at 296.
35. ^ MacCracken, 1968, at 75-76.
36. ^ Hillmon, 145 U.S. at 299.
37. ^ Hillmon, 145 U.S. at 295.
38. ^ MacCracken, 1968, at 76-77.
39. ^ Mrs. Hillmon's Evidence to be Finished Today, Leavenworth Times, Oct. 25, 1899, at 4.
40. ^ Claims Walters Was In Leavenworth In May 1879, Leavenworth Times, Nov. 14, 1899, at 4.
41. ^ Ready for Arguments in the Hillmon Case, Leavenworth Times, Nov. 15, 1899, at 4.
42. ^ ^{a b c} MacCracken, 1968, at 77.
43. ^ Has W.P. Hillman Been Found Alive?, Chi. Daily Trib., May 29, 1889; Wanderings of a Murderer, N.Y. Times, May 24, 1893; Hillmon Tells His Story: The Murderer Found in the Mountains of Utah, N.Y. Times, Jan. 2, 1894.
44. ^ Hillman's Arrest Untrue, Lawrence Daily Capital, May 10, 1889; Doubt About an Arizona Arrest, Chi. Daily Trib., Dec. 7, 1894; The Story of J.W. Hillmon, Topeka Daily Capital, Jan. 11, 1895.
45. ^ Dennis Van Gerven, "A Digital Photographic Solution to the Question of Who Lies Buried in Oak Hill Cemetery" (Feb. 13, 2007).
46. ^ Maguire, 1925, at 720.
47. ^ Fed. R. Evid. 803(3).
48. ^ Fed. R. Evid. 803(3) advisory committee's note ("[T]he rule of [Hillmon] . . . allowing evidence of intention as tending to prove the doing of the act intended is, of course, left undisturbed.")
49. ^ United States v. Pheaster, 544 F.2d 353, 375 (1976).
50. ^ Pheaster, 544 F.2d at 385.
51. ^ Wesson, 2006; Wesson, 2007; Wesson, in Lempert, 2006, at 277.

References

• Stratagems and Conspiracies to Defraud Life Insurance Companies: An Authentic Record of Remarkable Cases (G.W. Carleton ed., 1896).
• Brooks W. MacCracken, The Case of the Anonymous Corpse, Am. Heritage, June 1968.
• John MacArthur Maguire, The Hillmon Case—Thirty-Three Years After, 38 Harv. L. Rev. 709 (1925).
• Thomas Allen McNeal, The Hillmon Case (2009). BiblioLife.
• Marianne Wesson, The Hillmon Case, the Supreme Court, and the McGuffin, in Evidence Stories (R. Lempert ed., 2006).
• Marianne Wesson, "Particular Intentions": The Hillmon Case and the Supreme Court, 18 L. and Literature 343 (2006).
• Marianne Wesson, "Remarkable Strategems and Conspiracies": How Unscrupulous Lawyers and Credulous Judges Created an Exception to the Hearsay Rule, 76 Fordham L. Rev. 1675 (2007).

External links

• The Hillmon Case, a website about the case