The opinion
MARSHALL, J., dissenting.
Orders granting a new trial are as rare as hen’s 117teeth. Their rarity is reflected in the extraordinary deference we owe the circuit court in this situation. As our court recognizes, we review for an abuse of discretion. Among other things, discretion abused is discretion exercised thoughtlessly and without due consideration. E.g., Carlew v. Wright, 356 Ark. 208, 212 , 148 S.W.3d 237, 240 (2004). Deferential in general, that standard of appellate review embodies a spectrum of more or less deference depending on the nature of the judgment call under review. Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747 , 783-84 (1982). Our precedent reflects this truth. When, as here, the circuit court grants a new trial, it is and should be extraordinarily difficult to demonstrate an abuse of discretion. Carlew, 356 Ark. at 212 , 148 S.W.3d at 240 ; Arkansas State Highway Commission v. Wood, 102 Ark.App. 348, 351 , 285 S.W.3d 256, 259 (2008). Everyone will have another day in court. The important judicial interest in finality must give way to the more important judicial interest in truth.
Viewing the case through this lens, as we must, we should affirm on direct appeal. After trial, the parties briefed the newly-discovered-evidence issues. The circuit court received the briefs, held a hearing, and took testimony. The court examined the documentary evidence. The court observed the demeanor of Lee 118and McGinty under counsel’s questioning. The court questioned McGinty. And then the court decided, in light of all the material circumstances, that justice would be best served in this case by another trial. This record shows judicial discretion exercised carefully and thoughtfully, not discretion abused.
Our court has mastered this appeal as best we could from words on many pages. But we lack the feel for the case that comes from presiding over it. The deep question under Rule 59(a)(7) is whether the new evidence probably would have changed the trial’s result. Roetzel v. Brown, 321 Ark. 187, 190 , 900 S.W.2d 185, 186 (1995). No clear and certain answer exists to questions such as this. It is a matter of judgment. We should therefore defer to the court best situated to make the best judgment call.
Our court concludes that the post-trial evidence was not really new. I disagree. At trial, McGinty was firm initially that the truck never moved after the accident. Confronted with photographs, he wavered a bit. After trial, however, McGinty was firm that the truck was moved. As the circuit court recognized, this was a change. On deposition, at trial, and after trial, McGinty said he never gunned the engine. But Lee testified that, after the trial, McGinty admitted gunning the engine. This alleged admission was new. And it was on the critical |19issue in the case: what caused the truck to sling the mat? Neither McGinty’s revised testimony about whether the truck moved or his alleged admission about gunning the engine could have been discovered before trial. Lee did all he could and should have done by taking a thorough deposition of McGinty.
The court concludes that, in any event, the changed truck-location testimony was cumulative to Acklin’s trial testimony, and thus will not support a new trial. Roetzel, 321 Ark. at 190 , 900 S.W.2d at 186 . If that were all there was to the matter, I might agree. But McGinty’s post-trial letter reflects that his truck-location testimony, which we now know was wrong, was schooled by someone on the morning of trial. The circuit court was rightly concerned about his circumstance, which in my view brings the matter outside the usual situation of merely cumulative new evidence.
The court further concludes that McGinty’s alleged “I gunned the engine” admission was merely impeaching evidence given his denial of it at the post-trial hearing. And thus, as impeachment, the alleged admission cannot support a new trial. Roetzel says this. 321 Ark. at 190 , 900 S.W.2d at 186 . Other cases do too. E.g., Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 428 , 844 S.W.2d 337, 339 (1993); Rogers v. Frank Lyon Co., 253 Ark. 856, 861 , 489 S.W.2d 506, 509 (1973). | aiBut these words are dicta, not holding, in the circumstances here. No Arkansas case — until today— holds that a circuit court abuses its discretion by granting a new trial based on newly discovered impeachment evidence. That should not be the law in every situation. Whether new impeaching evidence justifies a new trial should instead depend on the circumstances. Here, it was no abuse of discretion for the circuit court to conclude that this impeaching testimony was a bomb.
Why this mat flew out from under the truck’s wheel and hit Lee was the issue in this case. When the truck driver allegedly admits after trial that he gunned the truck’s engine, the disputed admission is not merely impeaching. It goes to the core of the lawsuit. And it should support the circuit court exercising its well-informed discretion to grant a new trial. Roetzel’s dicta should give way in the face of good reasons and common sense.
Joined by Judges Baker and Brown, I respectfully dissent on reversing the circuit court’s new-trial order.