Bolden v. Sloss-Sheffield Steel Iron Co.

In my original dissenting opinion I called special attention to the nature of the fraud charged in the bill of complaint. I wish now to present in parallel columns the case made by the bill, and the case which has been decided by this court:

The Bill. The Opinion.

"The said Mary Belle "Under the averments of Bolden, and a witness, the bill, taken as true on Elizabeth Caster, who demurrer, the very existence testified in said cause of the cause of action was on behalf of the plaintiff, simulated, a mere concoction, testified in open court on conceived with malus animus, the trial of the aforesaid and supported by perjury. cause that the said Mary Belle Bolden was legally "Taking advantage of the married to the said John law by simulating a relation Hughley, deceased, about peculiarly within the six years prior to his knowledge of the claimant death, and that at the time with the purpose to cover up of the death of the said the facts and to establish John Hughley, deceased, the claim by perjury, despite the said Mary Belle Bolden due diligence of the other was living with him as party to ascertain the facts, his wife. And your complainant is the case before us." further avers that the said testimony * * * was false, and that the said Mary Belle Bolden was never married to the said John Hughley, deceased, and was not living with him as his wife at the time of his death."

Just what conduct and facts amount in law to a marriage, or to a living together as husband and wife, is a mixed question of law and fact, as to which the best judicial minds have often differed, and as to which laymen may easily and honestly differ. See Prince v. Edwards, 175 Ala. 532, 57 So. 714. Testimony affirming the ultimate conclusion necessarily involves a judgment of facts. The falsity of the conclusion is perfectly consistent with the honesty and good faith of the witness. So here, notwithstanding the alleged falsity of her conclusions that she was legally married to the deceased workman, and was living with him as his wife at the time of his death, this claimant may have honestly considered that she was his wife, and that she was living with him as his wife.

The bill of complaint carefully refrains from charging that the alleged false testimony was knowingly false, or that the claimant concocted the testimony for the purpose of obtaining a fraudulent judgment, or that she had any fraudulent purpose whatever. Instead, it relies alone upon the bald proposition that the testimony establishing the claimant's relationship to the deceased was untrue. Yet my brothers of the majority, contrary to that fundamental rule of pleading that on demurrer ambiguous or doubtful allegations must be construed against the pleader, have supplied the essentials omitted from the bill, and have gratuitously injected into it, as conclusions necessarily following as matter of law from the mere charge that the testimony was false, the features of a fraudulent concoction of the cause of action, a malus animus, and a false simulation of relationship with a purpose to cover up the facts, and to establish the claim by perjury. Such an expansion of the allegations of the bill — such an adoption of positive conclusions of fact not even hinted at in the bill — is, I think, without precedent, and utterly unwarranted in law or reason.

Without any "boiling down," as was done in Sloss-Sheffield, etc., Co. v. Lang, 213 Ala. 412, 104 So. 770, this bill charges no more than that the judgment was based on testimony that was false. The majority opinion deals with a very different case. Upon this consideration alone I would be unable to concur. But, as pointed out in my original dissenting opinion, regardless of that discrepancy, the complainant is not entitled to relief under the repeated decisions of this court.

A departure from the principle of those decisions is now sought to be justified on the ground that a claim under the Workmen's Compensation Act is different from other claims, in that it is created and given by law, and hence that the simulation of such a claim is a fraud and outrage upon the law as well as upon the employer, which justifies and requires a more liberal rule for impeachment of the judgment obtained thereon. I am unable to perceive the merit of such a distinction. The claim of a workman's widow for compensation under the act is not a gift. It grows out of the contract of employment. The dependent's right to collect, and the employer's duty to pay, the limited compensation fixed by the act, is grafted upon the contract and service of the workman by the law, but it is a substitute for the common law or statutory action previously existing in cases of injury due to the employer's negligence. The workman renounces the right to recover actual and punitive damages for negligent injury, and the employer renounces the right to plead the contributory negligence of the workman. The act is based upon the principle of give and take, and is mutually advantageous. It covers cases of negligent injury as well as nonnegligent injury.

There is in truth no difference, so far as the impeachment of judgments is concerned, between a judgment on a claim under the Compensation Act and on any other claim founded on contract or on tort, or on general property rights.

The question of the plaintiff's relationship to another person, as the essential basis of his right to maintain the suit and recover judgment, may and does arise in every sort of action. It is not peculiar to actions under this act. Why, then, should a special rule be devised for the review and retrial of simulated relationships in this one class of actions, while denying its application to all others? What would be the legal or moral difference in the plaintiff's simulation of a mother's relationship in an action under Code, § 5695, for injuries to a minor child, or of a wife's relationship in a suit for dower or a distributive share in her alleged husband's estate? Why is not the concoction of a forged note, and the procurement of a fraudulent judgment thereon against a dead man's estate (as in Fulton v. Eggler, 200 Ala. 269,76 So. 36), as much of an outrage on the law and on the court rendering the judgment as the simulation of relationship to a deceased workman? How can it be said that the fraudulent looting of a dead man's estate by the crime of forgery is less reprehensible, and less entitled to redress, than the imposition of a false dependent's claim upon a living employer? But this attempted distinction has already been refuted by the decision of this court in Sloss-Sheffield, etc., Co. v. Lang,213 Ala. 412, 104 So. 770.

In my original opinion that case was fully reviewed. It held that the false concoction of a claim against an employer by falsely simulating an injury to the workman's eye, and its fraudulent establishment in judgment by perjured testimony, was subject to the established rule that the use of false testimony is not a ground for relief against the judgment thereby obtained. It was not then conceived that judgments under the Compensation Act were, as to their impeachment for fraud, different from other judgments; and the decision in that case denies and forbids any such distinction.

The majority opinion ignores the Lang Case entirely. It not only makes no attempt to distinguish it from the instant case, but does not so much as mention it. It has been casually suggested, however, that the fraudulent simulation of the cause of action itself, the very fact of the injury for which compensation is claimed, is different from the fraudulent simulation of a dependent relationship to the deceased workman — different in such sense as to require the application of a different principle and a different rule of decision. But why is the fraudulent concoction of the very cause of action itself, by falsely simulating the injury without which there can be no lawful claim in favor of any one, less an outrage upon the law and the court, and less entitled to redress, than the fraudulent simulation of a mere relationship which creates a beneficiary of the claim? If there is any difference it would seem to be the other way, but in fact there is, and can be, no distinction in principle. The instant decision is in the teeth of the Lang Case, and if the decision herein is to stand the Lang Case should certainly be overruled. Its effect cannot be evaded by the superficial and unsubstantial distinctions suggested. It is in fact a denial of the very bases upon which the present decision is grounded.

As for fraudulently invoking and abusing the jurisdiction of the court, there is nothing to distinguish this case from any other case where false testimony is used to obtain a judgment, because in every suit jurisdiction is invoked.

The majority attach much importance to the theory that it is the proper function and duty of courts of equity to protect courts of law against the fraud of legal litigants. So far as concerns the retrial in equity of contested issues of fact already tried and determined in a court of law, in an adversary proceeding, it seems to me that courts of law need no such supervision or protection. They are co-ordinate in dignity and power with courts of equity, and are at least as competent to try all questions of fact committed to their jurisdiction, and their judgments ought to be final in their determination of issues of fact fairly tried, until reversed on appeal, or duly set aside by the trial court itself. "To this rule" Chief Justice Brickell declared 50 years ago, "this court has strictly, inflexibly, and uniformly adhered." Waring v. Lewis,53 Ala. 615, 624.

The reasons now given for this decision are the reasons which have always been urged and rejected. If valid, they would require the reopening of every judgment rendered by a court of law, and the retrial of litigated issues of fact, whenever a bill is filed asserting that the plaintiff's witness or witnesses testified falsely, and that the defendant has since discovered their falsity and was not negligent in not discovering it sooner. No one would deny the moral and legal propriety of such a retrial, if it could be assumed that the allegations of falsity were certainly true, and could be conclusively established. But all experience forbids such an assumption. The retrial would in most cases turn upon the number and credibility of the witnesses produced by the opposing litigants. It is better to intrust such a retrial to the court which rendered the judgment, and which alone has jurisdiction of the cause. For this the Legislature has made ample provision under sections 9520, 9521, of the Code.

In Keenum v. Dodson, 212 Ala. 146, 102 So. 230, the decree impeached was one setting apart a homestead exemption to a widow on her ex parte petition, falsely stating under oath that there were no heirs entitled to share in the estate. The bill of complaint showed that the complaining heirs "had no notice of this proceeding, were not before the court, and did not know of the order or decree made until a few months before the filing of this bill." In such a case any fraud, whether extrinsic or intrinsic, materially affecting the judgment, excites the jurisdiction of equity and justifies its cancellation. But the true ground therefor is not the making of a false claim merely, but the making and establishment of a false claim in a proceeding ex parte, or in rem, where the complaining parties were not before the court and had no opportunity to contest the claim — where, in short, there was no adversary trial. That case has been followed in the recent cases of Lester v. Stroud, 212 Ala. 635, 103 So. 692, and Quick v. McDonald, 214 Ala. 587, 108 So. 529, which were homestead proceedings in rem, and in which I concurred on the principle stated. That is the vital factor in cases of intrinsic fraud, and the purely fanciful distinction now sought to be made between the fraud manifested by a false petition or complaint, and the fraud manifested by the use of false testimony, is both illogical and unnecessary.

It is my earnest conviction that the new doctrine now embodied in this decision is fundamentally wrong, and will not endure.

GARDNER and THOMAS, JJ., concur in the foregoing dissent.