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Collins v. Morgan6/22/2005
line of cases that hold that the trial court is not required to accept the testimony of an interested witness and that the testimony of such witnesses cannot be considered undisputed merely because there was no contradictory evidence presented. See Motors Ins. Co. v. Tinkle, 253 Ark. 620, 488 S.W.2d 23 (1972); Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969); Knighton v. Int'l Paper Co., 246 Ark. 523, 438 S.W.2d 721 (1969).
In Motors, supra, our supreme court stated, "We have said many times that in weighing testimony, courts must consider the interest of a witness in the matter in controversy, and that a trier of facts is not required to accept any statement as true because merely so testified." Id. at 626, 488 S.W.2d at 28. The supreme court noted that the underwriter, an interested party, presented no proof of its underwriting standards or testimony from a disinterested witness. Id. Thus, the underwriter's testimony could not be taken as undisputed, and the trial court was not required to accept it even though no contradictory evidence was offered. Id.; see also Old Republic Ins. Co, supra.
Appellants also cite Clark, supra, wherein the court stated: A review of the record reveals several circumstances that would cause a reasonable fact-finder to doubt the truthfulness of Moseby's deposition testimony. Although there is little Arkansas authority directly on point addressing whether a motion for summary judgment should be denied because of the lack of credibility of the moving party's supporting evidence, there is ample persuasive authority in federal court decisions interpreting the federal version of our summary-judgment rule, Ark. R. Civ, P. 56, which is Federal Rule of Civil Procedure 56. We consider federal court decision interpreting Fed. R. Civ. P. 56 to be highly persuasive authority.
Id. at 320, 984 S.W.3d at 59. The Clark court went on to state that federal court decisions interpreting the Federal Rules of Civil Procedure establish that a trial court may deny a motion for summary judgment based on the lack of credibility of the moving parties affiants or witnesses. Id. The court further stated, "Doubts as to the credibility of the movant's affiants or witnesses may lead the court to conclude that a genuine issue [of material fact] exits." Id. at 321, 984 S.W.2d at 59. Moreover, the court stated, "Clearly, if the credibility of the movant's witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied." Id. at 321, 984 S.W.2d at 59. In Clark, Reginald Moseby hit and killed Otha Jordan while fleeing from the Dermott police. Id. At the time of the accident, Moseby was driving his girlfriend, Teresa Moore's, car. Moore was insured by Progressive Insurance Company, who sought declaratory judgment on the issue of whether it was obligated to defend Moseby in a suit brought by the victim's heirs. Progressive then moved for summary judgment arguing that it was not obligated to defend against the action because Moore's policy did not cover non-permissive drivers. The motion was denied, and Progressive deposed Moseby. Progressive then filed a second motion for summary judgment, attaching Moseby's deposition. The trial court granted the second motion for summary judgment.
In his deposition, Moseby testified that he and Moore had been "together" for twelve years; that the two lived together and had three children; that he never owned a vehicle, but that he helped Moore make the car payments on her car; that, even though Moore had forbidden him to drive the car, he had done so anyway, and that Moore knew that he had done so; and that, on the night he struck and killed Otha Jorda
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