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University of South Dakota School of Law

Tuesday, October 2, 2007

Teaching Assistants: Geoffrey R. Watson

WatsonWe broke some hearts in last week's post on Kirksey v. Kirksey, as several generations of contracts profs and students were forced to part with their fantasies regarding Isaac and Antillico (Angelico) Kirksey.  Well, this week we have very good news.  Levi Wyman lived!  And his father may even have loved him!!  Or so says Geoffrey R. Watson (left) in In the Tribunal of Conscience: Mills v. Wyman Reconsidered, 71 Tulane L. Rev. 1749 (1997).

Like Kirksey, Mills v. Wyman is a familiar case, involving a Good Samaritan (Mills) who cared for the dying Levi Wyman, estranged son of Seth Wyman.  Mills wrote to Seth to inform him of his son's condition and to invite Seth to visit his son.  According to the case, Seth replied that he could not come but would cover any costs Mills incurred in caring for Levi.  Levi Wyman died, despite Mills' ministrations, and Seth's promise was not kept.  Mills sued to enforce the promise.  The Supreme Judicial Court of Massachusetts concluded that Seth Wyman had a moral obligation to pay Mills but no legal one and ruled for Wyman.

Watson finds fault with everything about the Massachusetts' court's opinion.  Seth Wyman never promised to pay Mills, and Levi Wyman did not die until many years later.  Moreover, if the facts were as the court construed them, Watson thinks the "court missed an opportunity to shape a more sensible doctrine of promissory liability."  Id. at 1752.  Unlike those killjoys, Casto and Ricks, who sucked all the joy and mystery out of Kirksey, Watson leaves some of the mysteries of Mills unresolved.  For example, Watson's exhaustive historical research did not enable him to explain why the court treated Levi Wyman as a corpse in 1825 when as late as 1829 he was engaged in spending and wasting "his estate by excessive drinking and idleness."  Id. at 1757.  We do learn some dramatic details of Levi's illness, however.  For example, his symptoms included bouts of delirium during which "he leaped out of a chamber window to the immminent hazard of his life" and for which he was treated by a "prominent Hartford physician" with "1 gallon spirits" and pills.  Perhaps the Massachusetts court simply indulged the safe assumption that in the 1820s medical treatment for an illness such as Levi's was little more than an unpleasant prelude to death.

In any case, while Mills clearly thought he had received a promise from Seth to pay for services rendered, Watson views Seth's letter as far more equivocal, suggesting at best an intention to pay for future services.  Id. at 1761.  Watson suggests that Seth's failure to visit his dying son is best explained by Seth's advanced age (63) and frail health rather than by lingering ill-will towards Levi.  Id. at 1762-63.  In large part, Watson's critique of the Massachusetts court turns on his conviction that Seth made no promise.  While the court viewed Seth as a man "willing to have his case appear on record as a strong example of particular injustices sometimes necessary resulting from the operation of general rules," Watson paints a different picture of Seth:

Wyman did not make the promise and thus never "determined" to break any promise.  Wyman's "transient feeling of gratitude" might have been a sincere expression of willingness to pay for Levi's future expenses, but not his past ones.  Wyman's "willingness" to stand as an example of "injustice" was more likely a determination to fight for his rights. 

Id. at 1781.  Hmmm.  Do we like Seth better if we think he went to the Massachusetts Supreme Court to fight for his right not to pay a penny to the man who nursed his ill son back to health and then sought full reimbursement and not only reimbursement starting from the moment of the promise?

As to the doctrine of moral consideration, Watson thinks the law was much less clear than the court suggests, as Lord Mansfield had declared in a 1785 case that where there is a moral obligation and a promise, "the honesty and rectitude of the thing is a consideration."  Id. at 1783.  Lord Mansfield's position met with resistance in England, but was viewed sympathetically in America.  In the 1813 case, Bowers v. Hurd, the same Chief Justice Parker who decided Mills, enforced a moral obligation, even where no antecedent debt was found.  Id. at 1784-85. Reminded of Bowers in the context of Mills, Justice Parker remarked that the case "has been doubted."  Id. at 1786.

In the final section of the essay, Watson summarizes theoretical approaches to the moral obligation doctrine, including: the revival or waiver theory, which seems to have informed the Mills decision (id. at 1790-93); the promissory restitution theory embodied in R.2d s. 86 (id. at 1793-95); Duncan Kennedy's concerns about the "legalization" of family relations (id. at 1795-96); and Richard Posner's economic defense of the moral obligation doctrine. (Id. at 1796).  Watson finds all of these approaches inadequate in terms of explaining the behavior of courts.  For example, theoretical approaches call for the enforcement of either a pre-existing obligation or of the subsequent promise, but courts do not consistently enforce either.  The Restatement approach, as well as Posner's, suggest where the law ought to go rather than to describing the law as it is.

Watson has his own ideas for reform that draw on the doctrine of restitution.  Watson argues that "[o]ur society suffers more from apathy than from altruism" (id. at 1801) and therefore proposes that the law create incentives to encourage Good Samaritans, like Mills and Joe Webb of Webb v. McGowin.  Watson acknowledges that an expanded restitutionary doctrine would impose considerable judicial costs of enforcement.  Id.  The solution is simple, however. 

A promise to fulfill a moral obligation should be binding regardless of whether it is supported by consideration.  It should be enough for the plaintiff to prove that the defendant's promise was made with intent to be legally bound.  The existence of a past "moral obligation" should be treated as prima facie evidence that the moral obligor does intend to be bound.

Id. at 1801. Intent to be bound would be evidenced, says Watson, not by the bizarre rigamarole of the consideration doctrine but by formal mechanisms, such as a writing or a seal.  Id. at 1802.  Watson concludes by predicting the ultimate demise of consideration doctrine: "Consideration doctrine, if indeed it was ever useful, has outlived its utility.  The next century will see the end of consideration as we know it."  Id. at 1804.  With the end of the consideration doctrine, Watson foresees a future in which legal liability will be more closely linked to moral responsibility -- and the proposed reform would also enhance efficiency by making promises "more valuable at relatively little social cost."

The rule in Mills v. Wyman, says Watson is "eminently forgettable;" it is both "incoherent and inefficient."  Id. at 1806.  The facts of Mills -- from which we can create competing narratives -- are what remains.

[Jeremy Telman]

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Such a claim would probably succeed in Restitution in Canada and the UK. In Canada, for example, in Matheson v. Smiley, [1932] 2 D.L.R.785 the Manitoba Court of Appeal upheld an award to a surgeon for services provided to a man who had shot himself. The man’s doctor had requested the surgeon’s assistance. The patient was incapable of requesting or refusing or accepting the surgery. In fact, he died despite the surgeon’s efforts. The court upheld the lower court’s order that Mr. Smiley’s estate pay the surgeon $150 for his work. This relied upon the earlier decision of the English Court of Appeal in In re Rhodes (1890) 44 Ch.D. 94 (C.A.) (see also Nelson v. Duncombe (1846) 9 Beav. 211; 50 E.R. 323).

It should also succeed in Restitutoin in the US. John Dawson has a characteristically trenchant piece on the relevant U.S. authorities in “Rewards for the Rescue of Human Life?” in K.H. Nadelmann, A.T. von Mehren and J.N. Hazard (eds) 'Twentieth Century Comparative and Conflicts Law: Legal Essays in Honour of H.E. Yntema' (Sijthoff, Leiden, 1961) 142; and see also R.A. Albert “Restitutionary Recovery for Rescuers of Human Life” 74 Calif L Rev 85 (1986); H. Dagan “In Defense of the Good Samaritan” 97 Mich. L. Rev. 1152 (1999); and H. Dagan 'The Law and Ethics of Restitution' (Cambridge UP, 2004) chapter 4.

The point is that there really is no injustice. The law of Contract may not have the potential to provide a remedy here, but the law of Restitution certainly does. The moral of the story is that there may be remedies in cognate fields.

Posted by: Eoin O'Dell | Sep 27, 2009 8:17:16 AM

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