Fawcett v. Atherton

• Decision Date: 30 June 1941
• Docket Number: No. 75.,75.
• Citation: Fawcett v. Atherton, 298 Mich. 362, 299 N.W. 108 (Mich. 1941)
• Parties: FAWCETT et al. v. ATHERTON.
• Court: Michigan Supreme Court

298 Mich. 362

299 N.W. 108

FAWCETT et al.

v.ATHERTON.

No. 75.

Supreme Court of Michigan.

June 30, 1941.

Suit for injunction by Franklin Fawcett and another against Frank Atherton. From a judgment dismissing plaintiffs' bill of complaint, plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Iron County, in Chancery; Frank A. Bell, judge.

Argued before the Entire Bench.

Denis McGinn, of Escanaba, (N. C. Spencer, of Houghton, of counsel), for appellants.

Richard W. Nebel, of Munising, (Glenn W. Jackson, of Gladstone, of counsel), for appellee.

BUSHNELL, Justice.

Plaintiffs filed a bill of complaint praying that defendant Atherton be permanently enjoined from enforcing an award of the Department of Labor and Industry and from seeking a judgment on the basis of the award under 2 Comp. Laws 1929, § 8452 (Stat.Ann. § 17.187).

By their bill and eleven affidavits attached thereto, plaintiffs alleged: That although Atherton had been suffering from and treated for heart trouble for some 30 years past, being long prior to his claimed injury of February 13, 1931, this fact was unknown to plaintiffs until the spring of 1939; that he fraudulently concealed his true medical history from the doctors who testified at the Department's hearings and claimed, on the contrary, that prior to the accident he had been an able-bodied man. They further everred that the physicians who testified for Atherton based their conclusions upon the medical history given them and that the Department of Labor and Industry relied upon false testimony in making its award. Also, it is charged that Atherton produced at least one medical witness who testified falsely as to his training and qualifications. Plaintiffs claim that, because of Atherton's failure to give the true facts regarding his previous physical condition to his employer and the insurance carrier, he thereby perpetrated a fraud upon them and the Department.

Atherton filed a motion to dismiss in which he asseted that plaintiffs were guiltyof laches because they had from the entry of the deputy commissioner's order allowing further compensation on February 21, 1935, to the date when the Department finally disposed of this petition on August 26, 1938, to ascertain the facts and circumstances which would throw light upon the issue as to whether he had previously suffered from heart trouble; that plaintiffs were not prevented by him from making a full and complete defense; that the bill filed in the instant case does not show that plaintiffs relied upon the testimony of the medical expert who they now claim testified falsely; that the bill on its face does not show that Atherton's medical witnesses were misled in any way be his claimed false testimony; and, even if it be assumed for the purpose of the motion this his testimony was wilfully false, this furnishes no ground for relief.

Various aspects of Atherton's claim for compensation have been before this court in Fawcett v. Department of Labor and Industry, 282 Mich. 489, 276 N.W. 528, and Atherton v. Fawcett, 294 Mich. 436, 293 N.W. 708, 710. In denying Fawcett's motion for leave to take newly discovered evidence, the court said in the latter case: ‘If plaintiff, by false testimony, obtained an award to which he was not, in fact, entitled the remedy, if any, is in a court of equity.’

In granting defendant's motion to dismiss plaintiffs' bill of complaint, the trial court applied the rule laid down in Columbia Casualty Co. v. Klettke, 259 Mich. 564, 244 N.W. 164. In that case defendant had received compensation on the ground that she was the widow of the deceased employee and her award had been affirmed in Klettke v. C. & J. Commercial Driveway, 250 Mich. 454, 231 N.W. 132. The insurer sought to set aside this award on the ground of perjury and appealed from the dismissal of its bill. This court said:

‘It is now conceded by her there was no ceremonial marriage between her and Henry Klettke. In this suit she claimed a common-law marriage and gave proof tending to sustain her claim, which proof plaintiff asserts falls far short of sustaining a legal marriage. It claims her false testimony before the Department of Labor and Industry was perjury and constituted such a fraud upon that department as to justify the interposition of a court of equity in granting relief. Perjury is not uncommon in courts. In almost every case there are disputed facts. Courts, juries, and administrative tribunals are constantly called upon to weigh testimony, pass upon the credibility of witnesses, and determine, in legal controversies, who has told the truth. Though the authorities are not agreed, this state is committed to the rule, stated in Pomeroy's Equitable Remedies (2d Ed.) par. 656, published as paragraph 2077, Pomeroy's Equity Jurisprudence (4th Ed.) as follows:

“The courts hold that perjury is intrinsic fraud and that therefore it is not ground for equitable relief against a judgment resulting from it. We have seen that the fraud which warrants equity in interfering with such a solemn thing as a judgment must be fraud in obtaining the judgment, and must be such as prevents the losing party from having an adversary trial of the issue. Perjury is a fraud in obtaining the judgment, but it does not prevent an adversary...