Stibbs v. Stibbs

• Decision Date: 14 November 1950
• Docket Number: 31404.
• Citation: 37 Wn.2d 377,223 P.2d 841
• Parties: STIBBS, v. STIBBS.
• Court: Washington Supreme Court

223 P.2d 841

37 Wn.2d 377

STIBBS, v. STIBBS.

No. 31404.

Supreme Court of Washington.

November 14, 1950

Department 2.

McMicken Rupp & Schweppe, Mary Ellen Krug, and Grace O. Dailey, all of Seattle, for appellant.

Kahin Carmody & Horswill, Seattle, for respondent.

MALLERY, Justice.

This is an action for separate maintenance. The parties separate in February 1948, and this suit was commenced the following October. The complaint was based, largely, upon the allegation that the defendant had become enamoured of a former employee, and that he devoted all his time and attention to her. The defendant denied this in his answer. At the trial, evidence was introduced by deposition and by direct testimony in support of both sides of this issue. Plaintiff's chief witnesses were the former employee's husband, Mr Hill, and his sister and brother-in-law. Their testimony was that they had seen the defendant's car parked in front of Mrs. Hill's residence in Vancouver, B. C., on Saturday morning, September 18, 1948, at about 2:30 a. m., again at one o'clock p. m., and later at ten o'clock p. m. The car was identified by its license number and make. Some of the relatives had seen Mrs. Hill and the defendant riding in the car the same day. The car was also seen, in front of the house, on the following day, Sunday the 19th, and the defendant could be observed in the living room through the window.

The defendant was asked where he had been on the dates in question, and he testified that he had been i Chicago attending a dental convention, that he had left Seattle in the company of a doctor friend on September 9, 1948, and had returned to Seattle on the morning of September 20th. This testimony was corroborated in great detail by his friend and his wife. The effect of this alibi is reflected in the following quotation from the trial court's decision: '(i) Plaintiff produced several witnesses in support of her claim that defendant was driving with Mrs. Hill in Vancouver at about 3:45 p. m. on September 18, 1948; that his car was parked in front of Mrs. Hill's home that night about 2:30 a. m.; and that on the 19th at about 1:00 p. m. defendant's car was parked in front of her home, and he was seen in the living room. The witnesses so testifying were all related by blood or marriage to Mrs. Hill's estranged husband. Defendant produced evidence which established beyond doubt that he left Seattle for Chicago, Illinois on Sepember 10, 1948, that he was there until the evening of September 19, when he left by plane for Seattle, arriving here September 20, at approximately 11:00 A. M. I find that the testimony of the Hill family is unworthy of belief, and that the testimony of defendant and of Dr. and Mrs. Thomas is reliable.'

The trial court found for the defendant and dismissed the action. The plaintiff moved for a new trial on the statutory ground of newly discovered evidence based upon the affidavits of officials of the Northwest Airlines, Inc. Its records show that the defendant and his friend arrived in Seattle by plane from the east at 10:23 a. m., September 17, 1948. This refutes defendant's alibi. The wealth of detail in support of the alibi, which was so convincing to the trial court, is not compatible with mere inadvertence or faulty memory, but, rather, supports an inference of fabrication. The plaintiff appeals from the judgment and the order overruling the motion for a new trial.

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