New York Life Insurance Co. v. Nashville Trust Co.

Swepston, Justice

(dissenting).

My dissent in this case is based solely upon that part of the majority opinion which relates to the- question of whether this fraud was intrinsic or extrinsic. •

*535 I think the majority opinion reflects a great deal of study on the part of the writer and I think his conclusion would be justified by the opinion in the Hazel-Atlas Glass Company, decided by the United States Supreme Court, except that it is out of line with our own case. I am of the opinion, however, that the majority opinion opens up Pandora’s Box of troubles in that the stability of judgments will be destroyed. In the case above referred to, as stated in the majority opinion, the fraud consisted of a conspiracy entered into by the attorneys and officials of one of the companies to have published in a trade journal an article which would describe the process under consideration as a remarkable advance in the art of fashioning certain glass machinery. The Circuit Court of Appeals on the strength of that article held that the patent was valid. Thus it clearly appears that this fraud entered into the judicial process of the court in reaching its judgment. Therefore under all of our authorities in Tennessee it was intrinsic evidence. Thomas v. Dockery, 33 Tenn. App. 695, 702, 703 , 232 S.W.2d 594, 598 . “Extrinsic fraud is said to consist of conduct or occurrences extrinsic or collateral to the issues examined and determined in the action”, as distinguished from those things which are a part of the internal chain composing the process of adjudication.

Likewise the fraudulent conduct of Buntin in setting the stage to make it appear that his death had occurred was intrinsic evidence because, although the Insurance Company offered evidence to the contrary, this Court reached the conclusion on the strength of Buntin’s very conduct among other things that he was in fact dead.

It is suggested by one member of the Court that the evidence in the instant case is both intrinsic and ex *536 trinsic. According to the above definition of the two it is impossible for such a statement to be correct. The evidence is extrinsic in tlie sense that it occurred outside the courtroom but that is not within the definition of extrinsic evidence; it must be extrinsic because it was conduct or occurrences collateral to the issues examined in Court.

I am unable to see any difference between the fraudulent newspaper article in the Hazel-Atlas Glass case and the case of the forged document in any other case, or for that matter perjured testimony arising out of the subornation of a witness by the party to the suit. There is a rather weak and hazy statement in the opinion in the Hazel-Atlas Glass case where the Court said [ 322 U.S. 238 , 64 S.Ct. 1001 ]: “This is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjuryThe trouble with that statement is that there are many cases of after-discovered evidence where there is absolutely no question that perjured testimony entered into the case, or no question that a document was forged. There was therefore no more justification for setting aside the judgment in that ease above referred to on account of the admittedly false newspaper item than there would be in any other case where it unequivocally appeared after the decision or trial that the successful party had suborned witnesses or had procured forged documents that entered into the chain of circumstances leading to the formation of the court’s judgment.

This Court is not bound to follow the decision of the United States Supreme Court in a question of this nature and to do so is to go contrary to all of our cases treating of the distinction between intrinsic and extrinsic evi *537 dence and in effect to abolish the distinction in Tennessee, the result of which would destroy the repose of judgments and open up the floodgates of litigation designed to set aside former judgments on the ground that same were procured by alleged extrinsic fraud when in fact the fraud was according to all our definitions intrinsic.

For these reasons I am of the opinion that we should let the dead past bury its dead, as in fact Thomas Buntin was dead within the contemplation of the insurance contract and the laws of Tennessee.

In conclusion I am of opinion that the bill should have been dismissed on this ground alone. Otherwise I have no fault to find with the majority opinion.