Wilson v. Pollet

• Decision Date: 08 July 1966
• Docket Number: No. 629,629
• Citation: 416 P.2d 381
• Parties: David W. WILSON, Appellant, v. Evelyn POLLET, Appellee.
• Court: Alaska Supreme Court

Page 381

416 P.2d 381

David W. WILSON, Appellant, v. Evelyn POLLET, Appellee.

No. 629.

Supreme Court of Alaska.

July 8, 1966.

Robert M. Libbey, Lester W. Miller, Jr., and Kay & Miller, Anchorage, for appellant.

Robert C. Erwin, Hughes, Thorsness & Lowe, Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

RABINOWITZ, Justice.

The sole issue involved in this appeal is whether the superior court properly granted appellee's motion for summary judgment. We are of the opinion that appellee-movant failed to establish that no genuine issue as to any material fact existed. We, therefore, conclude that the superior court erred in granting appellee's motion for summary judgment.

On August 1, 1965, appellant, while operating a motorcycle, collided with a motor vehicle at the intersection of Karluk Street and 9th Avenue in Anchorage, Alaska. Thereafter, appellant commenced suit for personal injuries against appellees, Kenneth P. Foltz and Eunice White. In his amended complaint appellant alleged in separate alternative causes of action that the vehicle he collided with had been operated by appellee or by Kenneth P. Foltz. ¹

In her answer appellee denied that she was the operator of the vehicle in question and asserted that at the time of the accident she was a passenger in a car driven by Kenneth P. Foltz and exercised no control over its operation. Defendant Foltz, acting in pro. per., filed a general denial to appellant's amended complaint. ² Subsequently, counsel filed an answer on behalf of both defendant Foltz and defendant White. ³ In this joint answer defendants Foltz and White denied all allegations of appellant's amended complaint which asserted that Foltz was the operator of the motor vehicle at the time the collision occurred.

Thereafter, in response to interrogatories propounded by appellee Evelyn Pollet, defendant Foltz answered that he was the driver of the automobile at the time it collided with appellant's motorcycle. After receipt of Foltz's answers to her interrogatories, appellee Pollet moved for summary judgment.

In appellee's own affidavit filed in support of her motion for summary judgment, she stated in part:

That on August 1, 1964, at about the hour of 8:19 P.M., she was a passenger in an automobile driven by Kenneth P. Foltz, owned by Eunice White, which was involved in an auto-motorcycle collision at the intersection of Ninth and Karluk Street.

At the accident scene, we told the police that I was driving the automobile inasmuch as I had a driver's license and Kenneth P. Foltz did not have a driver's license.

That in fact, your affiant was a passenger in this automobile and Kenneth P. Foltz was driving this vehicle. (Emphasis furnished.) ⁴

In support of her motion for summary judgment, appellee also filed an affidavit of Kenneth P. Foltz, which in its pertinent part read as follows:

When the police came to investigate the accident, we told the police that Evelyn Pollet was driving inasmuch as I did not have a driver's license and she did. This was agreed to by Evelyn and myself prior to the time the police arrived.

After we left the scene of the accident, we went to Evelyn's parents house and told them the above. We then decided that it was best to tell the police the truth but were unable to contact them on Saturday. We finally made contact with the police on Sunday, at which time I advised them that I was the driver of the automobile. (Emphasis furnished.) ⁵

In opposition to appellee's motion for summary judgment, appellant filed a statement of genuine issues which read in part:

The following issues of fact are genuine and should be litigated in this action:

1. Whether the defendant Evelyn Pollet was the driver of the automobile which struck the plaintiff on the occasion from which this civil action arose. ⁶

In his memorandum in opposition to appellee's motion for summary judgment, appellant indicated that he intended to rely upon appellee's admission to the investigating officers as substantive evidence that she was the operator of the motor vehicle at the time in question. ⁷ Appellant did not file any affidavit in opposition to appellee's summary judgment motion.

Our disposition of the merits of this appeal makes appropriate reference to certain principles which have become established in law regarding summary judgment.

Early in the history of this court we stated that the purpose of summary judgment is

to allow the court to dispose summarily of a case where the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Its purpose is not to cut off litigants from their right to trial by jury on genuine issues of fact. Even though there may be considerable doubt as to the existence of a claim or defense, if it appears to be in good faith the party asserting it is entitled to a trial and an opportunity to examine the case or defense of his adversary in the usual course. ⁸

We also held in Ransom v. Haner ⁹ that the burden of showing the absence of a genuine issue as to any material fact is upon the moving party. This burden is satisfied when the movant's showing makes it quite clear what the truth is. ¹⁰ In ruling on a motion for summary judgment all reasonable inferences from the proofs offered are drawn against movant and viewed in the light most favorable to the party opposing the motion. ¹¹ The court's function when ruling on a motion for summary judgment is to decide whether or not a genuine issue as to any material fact exists. The court is not to resolve any existing genuine issues as to material facts in determining a summary judgment motion. ¹²

It is also established that if, at the hearing on a motion for summary judgment, there is contradictory evidence, or the movant's evidence is impeached on material matters, then an issue of credibility is raised, providing the contradictory or impeaching evidence is not too incredible to be believed by reasonable minds. ¹³ When such a situation occurs, the court should not attempt to resolve any genuine issue as to credibility and the motion should be denied as movant has failed to establish the absence of any triable issue of material fact. ¹⁴

With these principles in mind we turn to the issue raised by this appeal. In our opinion appellee's own evidence adduced in support of her motion for summary judgment precluded the granting of her motion. Appellee's admission in her affidavit filed in support of her motion that she had told the investigating officers at the scene of the accident that she was the driver of the automobile raised an issue of credibility which made the granting of summary judgment inappropriate. This admission of appellee was admissible as substantive evidence on the issue of whether or not she was the driver of the automobile at the time it collided with appellant's motorcycle. ¹⁵ In this regard Judge Frank's statement in Arnstein v. Porter, ¹⁶ is pertinent:

It follows that, as credibility is unavoidably involved, a genuine issue of material fact presents itself. With credibility a vital factor, plaintiff is entitled to a trial where the jury can observe the witnesses while testifying. Plaintiff must not be deprived of the invaluable privilege of cross-examining the defendant-the 'crucial test of credibility'-in the presence of the jury. * * *

But where, as here, credibility, including that of the defendant, is crucial, summary judgment becomes improper and a trial indispensable. * * *

In addition to appellee's admission, the pleadings contradict the affidavit of Kenneth Foltz which appellee adopted and filed in support of her motion for summary judgment. Foltz, in his affidavit, admitted to telling the police that appellee was the driver and then asserted that within a short period of time he decided to tell the police the truth as to who was the driver. Yet, as indicated previously, subsequent to the time that Foltz alleges he told the police he was the driver (purportedly correcting his previous falsehood), Foltz himself, and then later when represented by counsel, filed answers denying that he was the driver of the vehicle in question. ¹⁷ In light of these circumstances, we hold the appellee's evidence in support of her motion for summary judgment was both impeached and contradicted and, therefore, raised an issue of credibility as to a material fact which made the granting of summary judgment in the circumstances erroneous. In short, from the showing made by appellee, it is far from clear what the truth is as to who was driving defendant White's car at the time of the accident.

We are of the view that appellee's reliance upon Isler v. Jensen ¹⁸ is misplaced. In our opinion in that case, we stated:

Plaintiffs have demonstrated that there was no genuine issue of fact to be litigated. In view of this showing it was incumbent upon the defendants, in order to prevent the entry of a summary judgment, to set forth facts showing that they could produce admissible evidence which reasonably would tend to dispute or contradict plaintiffs' evidence, and thus demonstrate to the court that a triable issue of fact existed. * * * ¹⁹

Unlike Isler, here the record discloses that appellee failed to sustain her burden of proof pertaining to the lack of any genuine issue of material fact to be litigated. Appellee's own evidence offered in support of her motion demonstrates that appellant could produce 'admissible evidence which reasonably would tend to dispute or contradict' appellee's evidence.

Appellee further contends that the lower court properly entered summary judgment because appellant 'could not have escaped the granting of a directed verdict on the evidence presented.' ²⁰ In support of this argument appellee relies heavily upon Dyer v. MacDougall. ²¹ In our view, the Dyer case represents an unusual exception to the...