author: REGAN, Judge.

text:
    BOURGEOIS et al. v. N. J. CLESI, Inc., et al.
    No. 19108.
    Court of Appeal of Louisiana. Orleans.
    Jan. 24, 1949.
    Rehearing Denied Feb. 7, 1949.
    Writ of Certiorari Denied March 21, 1949.
    -George Piazza, of New Orleans, 'for appellant.
    Benjamin Y. Wolf, of New -Orleans, for appellees.
   REGAN, Judge.

- Lester L. Bourgeois and 'his -sister, Mi-s-s Mercedes M. Bourgeois, the plaintiffs herein, fi-led -suit against N. J. Clesi, Inc., a real estate broker, the United States Fidelity & Guaranty Company, the -surety on the 'broker’s -bond, and Anna A. Bur-rer, the owner of the property in question, for -the -return of a deposit of 10% o-r $1450.00, retained by N. J.: Glesi, In-c., -in connection wi-th an agreement to purchase -from Anna A. Burrer, the property bearing the municipal No. 435 in S. Pierce Street, in 'the City of New Orleans, for -the -price of $14,500.00.

The defendants each filed an answer denying that plaintiffs were entitled to the return of the deposit. N. J. Clesi, Inc., further -answered and reconvened 'for the ■sum of $660.00, which represents the -real estate -broker’s commission, plus a. reasonable attorney's -fee. Anna A. Burrer, the owner, reconvened claiming' the 'full am-ount of -the said deposit less a remitti-tur of $470.00.

The lower -court rendered judgment in plaintiffs’ favor -and -against the defendants in -solido for the sum of $1450.00, and dismissed both «conventional demands. From this judgment the -defendant, N. J. Clesi, In-c., alone pr-o-secutes thi-s appeal.

The record reveals that on December 27th, 1946, the plaintiffs herein, through N. J. Clesi, Inc., signed an offer to purchase the property bearing -t-he municipal number 435 S. Pierce Street, in the City ■of New Orleans, for the price of $14,-500.00, payable $6,000.00 cash -and the “balance subject to home-stead loan”. The phrase “balance subject to 'homestead loan” was written into the contract in longhand, presumably by the -office of de-' féndant, N. J. Clesi, In-c. This stereotyped agreement (which is the standard form of -the Real Estate Board of New Orleans, I.nc., revised on July 7, 1941) further provides in part -a-s -follows :

“This -sale is conditioned upon t-he ability -of the purchaser to borrow upon this property as surety the sum o-f $-- either by a Homestead loan from any Homestead on the usual Homestead terms, or by a mortgage loan from some other source at a rate o-f interest not to exceed-% per annum and for a period not less than -years, which loan the purchaser obligated himself to obtain if procurable. Either loan to- be secured by purchaser or agent-days from acceptance hereof.
. ^ ^ *1*
“Act of Sale to be passed before Purchasers, Esq., Notary on or prior to 60 Days 19 — , at expense of purchaser.
% sjt
* * jn t,}je event that purchaser fails to -comply with this agreement within -the time specified, the vendor shall have the right, either to declare the deposit, ip-so facto, -forfeited, without formality and without placing purchaser in default, time bemg the essence of this contract; or -the vendor may -demand specific performance. In the e-ven-t d-hat the deposit is forfeited, the commission of the agent shall be -paid out of this deposit, reserving to -the vendor the right to proceed against -purchaser for the recovery of the amount -of the commission. I-n the event that the vendor -does not comply with -this agreement to -sell within the time specified, purchaser shall -have the -right either to demand the return of double the deposit, or specific -performance. The commission is earned on the signing o-f the -agreement and -shall not be affected by any -subsequent agreement of the parties hereto, or by annulment of contract by any court.” (Italics ours.)-

The offer was accepted on December 27-th, 1946, by the owner. The deposit of 10% or $1450.00 was accepted and retained by N. J. Clesi, In-c.

. On or about January 16th, 1947, plaintiffs -applied to t-he First Homestead and Savings Association for -a loan of $8500.00 on -the property in question. On January 23rd, 1947, they were informed by the President of this homestead that the said homestead could not make -a loan for this -amount. The President -stated that he evaluated this -property for -a 1-o-an -on the basis of hi-s personal appraisal and -also -on the basis of a prior appraisal of the Central Appraisal Bureau, which was contained -either in h-is files or the files of the Central Appraisal Bureau, -and which -revealed the loan value of the property as $3500.00 at the time that this appraisal was made; and that in hi-s opinion the property, for homestead loan purposes, was evaluated at $8500.00, and his homestead would loan, based on this appraisal, from $6800.00 to $7200.00, subject, of course, to a re-appraisal by the Central Appraisal Bureau of $8500.00

Thereafter, on January 28th, 1947, N. J. Clesi, In-c., by and with the -consent, cooperation -and -assistance of the -plaintiffs, applied to the Pan American Li-fe Insurance Company for the loan. There is a dispute between plaintiffs -and defendants as to the date that the rejection of this loan by the Pan American Life Insurance -Company -ca-me to the knowledge of plaintiffs. It appears, however, -from t-he record that the Pan American Life Insurance Company’s lo-an -agent, H. T. Presser, was notified 'by the Company -on February 14th, 1947, that the said company would not loan in excess of $7000.00 on the property and that he notified Clesi on the same date. Clesi contends that he, in turn, notified the plaintiffs of this fact between February 16th and February 20th, 1947. However, plaintiffs contend that the rejection of their application to Pan American Life Insurance Company for a loan of $8500.00 did not come to -their attention until February 26th, 1947. In any event, it appears that after the -rejection of this application for a loan of $8500.00 by the Pan American Life Insurance Company, defendant Clesi, apparently on his own initiative, applied to the First National Life Insurance Company for a 'loan on the property in question and the record reveals' that -a loan of $8500.00 was granted and same is indicated by virtue of a letter from the First National Life Insurance Company to Clesi, dated February 26th, 1947. In turn, Clesi wrote -a -letter -to the plaintiffs, -which is dated March 1st, 1947, and enclosed a -copy of -the -letter from the First National Life Insurance Company, dated February 26th, 1947. It is interesting to note that the envelope in which these letters were -contained bears two postmarks — -March 1st and March 3rd. Plaintiffs acknowledge -receiving -the letter on March 3rd, 1947.

There is a dispute between plaintiffs and the defendant, N. J. Clesi, Inc., as -to when the granting of this lo-an by the F-irst National Insurance Company was communicated to -the plaintiffs. Clesi, in answer to a question by the Court, stated -that between February 22nd and February 25th, 1947, he communicated this information to the plaintiffs. Plaintiffs, on the other hand, maintain that their first knowledge of the granting o-f this loan came through the medium of the letter referred to here-inabove, written to them by Clesi dated March 1-st, 1947, and received by -them on March 3rd, 1947.

The -record further -reveals that on February 27th, 1947, the plaintiffs called at the office of N. J. Clesi, Inc., and demanded the return of -the deposit. This was refused and -thereafter plaintiffs consulted their attorney, who, on the -same day, February 27th, 1947, addressed a letter to N. J. Clesi, Inc., and the owner of the property, Anna A. Burrer, -demanding the return of the deposit. Defendant Clesi refused to return -the deposit and thereupon plaintiffs filed this suit. Thereafter Clesi deposited in the Registry of the Court the sum in question, to be disposed of in accordance with the final judgment herein.

Plaintiffs contend as -follows:

(a) That because of t-heir inability to secure a loan within the sixty days -from the date of the acceptance o-f the offer that they have the right to recede -from thi-s agreement;

(b) That the -loan offered by -the First National Life Insurance Company was not a homestead 1-oan, which they maintain the -contract -specifically provided f-or; and

(-c) That the loan offered by the First National Life Insurance Company was not -made kn-own to them until the sixty days had expired after the date of t-he offer and acceptance and, therefore, they were not bound legally to accept it.

Defendant, N. J. Clesi, Inc., -contends:

“(a) That plaintiffs did not make a sincere and diligent effort to secure the credit portion of the purchase price;
“(b) That the offer of the First National Life Insurance Company to lend the necessary credit portion of the purchase pri-ce was conveyed to plaintiffs prior to the expiration of -the sixty-day -period.
“(c) That the 60-day -period -given to the buyers to pass the sale is a condition stipulated solely and only for -the benefit of the buyers -and they cannot avail -themselves thereof -arbitrarily and without notice to the lo-ss and detriment of the other parties to the contract.
“(d) That, according to the explicit terms -of t-he agreement, the commission of the brokers is earned upon the acceptance of the -offer, and the -failure -of the buyer to secure a 1-o-an and the -resultant dissolution of the contract does not deprive the brokers of t-heir commission.” »

In our opinion the only question with which we are -concerned is -one of -fact and -that is, whether a homestead loan or -any other 1-o-an was obtained within sixty days from December 27th, '1946, the date on which the offer and acceptance was consummated. There is no dispute that the offer to purchase the property was made and accepted. The contract clearly reveals this fact. As pointed out above the contract provides that:

“In the event that purchaser fails to comply with this agreement within the time specified the vendor shall have the right, either to declare the deposit, ipso facto, forfeited, without formality and without placing purchaser in default, time being the essence of this contract; or the vendor may demand specific performance. In the event that the deposit is forfeited, the commission of the agent shall be paid out of this deposit, reserving to' the vendor the right to proceed against purchaser for the recovery of the .amount of the commission. In the event that the vendor does not comply with this agreement to sell within the time specified, purchaser shall have the -right either to demand the return of double the deposit, or specific performance.” (Italics ours.)

We, therefore, see that the contract specifically provides that time -is of the very essence of this contract.

Civil Code, Article 2058, provides as follows:

“When the contract is to do the act in a certain number -of days, or in a certain number of days after the date of the contract, the day of contract .is not included in the number of days to- be counted, and the obligor has until sunset of the last day of the number enumerated for the performance of his contract, with the exception -contained -in the last preceding -article.”

This contract -was brought into being on December 27th, 1946, by virtue of plaintiffs’ offer to purchase and the -owner’s acceptance thereof. Therefore, not including December 27th, 1946, i-n our -calculation, the -sixty days expired at sun-set o-n February 25th, 1947. Ratcliff v. Louisiana Industrial Life Ins. Co., 185 La. 557, 169 So. 572.

The record -reveals that the loan was approved in a letter dated February 26th, 1947, by the First National Life Insurance Company, addressed to N. J. Clesi, Inc., and 'received by .that office on February 27th, 1947, which information was -communicated to the plaintiffs -through the medium of ,a -letter written to them by Clesi on March 1-st, 1947, -and -received by them on March 3rd, 1947. Clesi maintains that he gave this .information -to- the plaintiffs between February 22nd -and February 25th, 1947, bu-t th-e plaintiffs vehemently deny this and if .is our opinion that the first knowledge that they had concerning the fact that a loan from the First National Life Insurance Company had even been applied for, much -less -approved, was when they received Clesi’s letter on March 3rd, 1947. We are, therefore, -of .the opinion that a -loan was not procured within the -sixty day period -a-s provided for in this -contract. A -fortiori it is unnecessary for us to -decide i-n conformity with -the alternative -contentions -of plaintiffs and defendants whether the contract -specifically provided -f-o-r a “homestead loan” a-s written .into the -agreement in longhand, or ;any other type o-f -mortgage loan a-s per the ■stereotyped printed terms of the agreement.

Counsel for defendant, N. J. Clesi, Inc., contends that -the plaintiffs did not make a -sincere and diligent effort to -secure the -credit -portion -of the purchase pric-e. We believe .they. did. Within a reasonable time -after -the consummation -of '-the offer and acceptance of this contract, plaintiffs called upon the First Savings & Homestead Association and attempted to secure a loan for $8500.00. They were informed by the President thereof that he had looked at the property and had evaluated it from his personal observation thereof and from a previous appraisal of the Central Appraisal Buread, which appraisal indicated that the property had a loan value of only $5500.00, and further, in his opinion, that in no event would his homestead loan more than from $6800.00 -to $7200.00 on this property, assuming that it was re-appraised at $8500.-00 by the Central Appraisal Bureau.

It is generally well recognized that all homestead within the City of New Orleans are governed by identically the same rules and regulations, to-wit: that they

will lend approximately 80% of the Central Appraisal Bureau’s evaluation of residential property. Savich v. Ruiz, La.App., 32 So.2d 415. The President of the said homestead advised plaintiffs of this fact' and it would have been a useless gesture for them to have applied to any other homestead with respect to this loan. Plaintiffs, in good faith, requested and obtained the assistance of an employee of the office of N. J. Clesi, Inc., to procure a loan for them from the Pan American Life Insurance Company. This application was also rejected. In our opinion the plaintiffs did make a sincere and diligent effort to secure the credit portion of the purchase price.

‘Counsel for Clesi further contends that according to the terms of the contract the commission of the broker is earned upon the acceptance of the offer, and the “failure of the buyer to secure a loan and the resultant dissolution of the contract does not deprive the brokers of their commission.” We are not in accord with this view. It was through no fault of the plaintiffs that this sale was not consummated for, in our opinion, they diligently and in good faith, attempted to secure a loan for the credit portion of the contract. The record reveals they were unable to do this.

“When a prospective purchaser of property obligated himself to pay the broker’s commission on his failure to comply with his offer, and the sale is not consummated but through no fault of the prospective purchaser, he owes no broker’s commission.”

(Syllabus) Beaucoudray v. Roberts, 8 La.App. 739.

We are, therefore, of the opinion that the plaintiffs are not liable for any part of the broker’s commission.

For the reasons assigned the judgment appealed from is affirmed at the cost of appellant.

Affirmed.


source: Caselaw Access Project

author: FOURNET, Justice.

license: Public Domain

text:
    214 La. 717

    FUNDERBURK v. FUNDERBURK.
    No. 38672.
    Supreme Court of Louisiana.
    Jan. 10, 1949.

      John R. Hunter & Son, of Alexandria, for plaintiff-appellant.
    John H. McSween, of Alexandria, for defendant-appellee.
   FOURNET, Justice.

The plaintiff, Mrs. Jessie W. Funderburk, alleging that she is the surviving widow of Edward Henry Funderburk, instituted this suit against Victor Barnes Funderburk, son of the deceased and executor of his succession, seeking to have a' Buick automobile and certain household furniture listed on the inventory as belonging to the succession decreed to be her separate property and also to have her right to a half of the property acquired during the marriage, including amounts spent in repairing and improving certain immovable property of the decedent, recognized. These demands were resisted by the defendant on the ground that the' plaintiff had never been legally married to the deceased since at the time their marriage was contracted the deceased was not legally divorced from his first wife, his purported divorce having been secured through fraud and deceit and in contravention of law. The trial judge, being of the opinion that the divorce was a nullity and that the marriage between the plaintiff and the deceased had been contracted in bad faith and was, therefore, null and void, producing no civil effects, rendered judgment rejecting the plaintiff’s demands. She is appealing.

The undisputed facts of the case as reflected by the record are that the deceased married Cynthia Calhoun on March 16, 1910, and established their matrimonial domicile in Rapides Parish. Six children were the issue of their marriage. In 1922, under judicial decree, Cynthia Calhoun was formally committed to the Louisiana Hospital for the Insane at Pineville, Louisiana (now the Central Louisiana State Hospital), in which institution she still remains. Shortly after her commitment, in 1923, Funderburk employed the plaintiff to keep house for him and to care for his children. At that time she, with her husband and minor child, moved into his home. In 1925, Funderburk, alleging himself to be a resident of Avoyelles Parish, although the record shows he was then residing at his home in Pineville, Rapides Parish, instituted suit in the judicial district court for that parish seeking a divorce from his wife on the grounds of adultery, and he secured his decree of divorce after the proceedings had been carried on contradictorilly with a curator ad hoc appointed by the court upon Funderburk’s representation that his wife was an absentee of the state whose last known address was Beaumont, Texas. In 1934, after the plaintiff had secured a divorce from her husband on the ground of living separate and apart for four years, the deceased secured a marriage license in the Parish of Grant and was there married to the plaintiff. Thereafter, they continued to live together as man and wife in Rapides Parish until Funderburk died there in the fall of 1946.

In the light of the foregoing, the plaintiff concedes, as of necessity she must, that the divorce secured by Funderburk was a nullity. It is her contention, however, that as a putative wife, having been in good faith at the time she contracted the marriage with the decedent, she is, under the provisions of the Revised), Civil Code, entitled to the civil benefits flowing from such a marriage.

“The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.” Article 117. But, “if only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor and in favor of the children born of the marriage.” Article 118.

The good faith referred to in these articles means simply the honest and reasonable belief that the marriage at the time of its confection was a valid one. Smith v. Smith, 43 La.Ann. 1140, 10 So. 248; Succession of Marinoni, 183 La. 776, 164 So. 797; Succession of Chavis, 211 La. 313, 29 So.2d 860; Howard v. Ingle, La.App., 180 So. 248. The burden of proving a charge of bad faith on the part of a marriage cont-ractant rests squarely upon the person making the charge (Succession of Navarro, 24 La.Ann. 298; Macaluso v. Succession of Marinoni, supra; Howard v. Ingle, supra), and if there be any doubt as to the good faith of the parties, it is to be resolved in favor of good faith. Jones v. Squire, 137 La. 883, 69 So. 733. The innocent party to a bigamous marriage is held to be in good faith so long as he or she has no certain knowledge of any impediment thereto. Patton v. Cities of Philadelphia & New Orleans, 1 La.Ann. 98; Ray v. Knox, 164 La. 193, 113 So. 814.

As was very aptly pointed out in Succession of Chavis, supra [211 La. 313, 29 So.2d 863], what constitutes good faith “is not an absolute quality but is relative, and depends ultimately upon the facts and circumstances in each individual case.”

It is the plaintiff’s contention that the defendant has failed to sustain the burden that is his of establishing her bad faith. The defendant, on the other hand, in his attempt to establish the bad faith of the plaintiff argues that it is “reasonable to assume that plaintiff, living as she did in decedent’s home from 1923 until 1934 and coming into daily contact with him and with his children, had some knowledge of the circumstances under which decedent had obtained the void decree of divorce against his wife,” sufficient, at least, to “put her on her guard.” As further evidence of her bad faith, he points out that at the time the parties undertook to contract their marriage, they went into a parish other than that of their domicile and secured a license and had the ceremony performed, citing in support of this contention the cases of Thomas v. Thomas, 144 La. 25, 80 So. 186, and Prieto v. Succession of Prieto, 165 La. 710, 115 So. 911.

These cases are only authority for the proposition that the mere assertion by the man to the woman that he has secured a divorce from his wife whom she knows he is married to is not sufficient in itself to create a presumption of good faith on her part where there are no further facts and circumstances that would lead her to believe the man is actually divorced.

In the case under consideration, the plaintiff did not rely upon the bare assertion of Funderburk that he had obtained a divorce from his wife, but, instead, upon the duly certified copy of the divorce decree that he presented to her when he proposed marriage, which certified copy is in the record.

There is not a sointilla of evidence in the record, unless we are to resort to conjecture as suggested by counsel for the defendant, to show that the plaintiff had any knowledge of the nullity of the purported divorce decree. To assume, as also suggested by counsel, that bad faith can be imputed to the plaintiff because on the face of the decree it shows it was rendered by the Twelfth Judicial District Court for the Parish of Avoyelles, could only result in the further assumption that the plaintiff was well versed in the law on this subject matter.

In the record we find the plaintiff’s testimony that she had no inkling of the nullity of the divorce and the invalidity of her marriage until these proceedings were instituted is fully corroborated by other evidence revealing that immediately after the marriage she and the decedent returned to the Pineville home and from that day until the day of his death some 12 years later they continued to live there as man and wife, during which time she not only went 'by the name of Mrs. Henry Edward Fun-derburk but was recognized and accepted -as his legal and lawful wife throughout the •community. She kept house for him, she nursed and cared for him, and she raised bus children by his former marriage; and, ■although the defendant was at the time of the marriage approximately 19 years old, ■neither he nor any of his brothers or his ■sister, nor any of the friends of the family, •one of whom, Afig F. Klumpp, witnessed the marriage ceremony, ever intimated to the plaintiff any doubt they might have entertained or any knowledge they might have possessed as to the invalidity of her marriage or any impediment thereto.

It is our conclusion, therefore, that the defendant has not. only failed to •sustain the burden of proving the plaintiff’s bad faith, but that the overwhelming preponderance of the evidence establishes she was in good faith in contracting this marriage. Consequently she, as the putative wife, is entitled to half of all of the property acquired during the time she was married to the decedent.

There must be taken into consideration, also, the repairs that were made during the existence of the community to the separate property of the husband, used ■and enjoyed by them as a home, although the recompense due for such repairs is not based upon the actual amounts expended, as claimed by the plaintiff, but is limited to the enhanced value of the property resulting from such repairs and improvements as of the date of the dissolution of the •community. Article 2408 of the Revised Civil Code; Depas v. Riez, 2 La.Ann. 30; Succession of Boyer, 36 La.Ann. 506; Dillon v. Freville, 129 La. 1005, 57 So. 316; Succession of Ferguson, 146 La. 1010, 84 So. 338; Peters v. Klein, 161 La. 664, 109 So. 349; and Succession of Singer, 208 La. 463, 23 So.2d 184. While the plaintiff did prove during the trial the actual cost of some of the repairs and improvements made to the decedent’s separate property at the expense of the community, there is nothing in the record to show the value of this property prior to these improvements or the enhanced value thereof at the time of the dissolution of the community and we will, therefore, non-suit her claim in this respect.

We now pass to her claim that the following movable property, listed on the inventory as belonging to the succession of the decedent, is her separate property and should be recognized as such and restored to her:

1. A living room suite consisting of an overstuffed davenport and two arm chairs, reddish brown in color, claimed to have been purchased by her prior to her marriage to the decedent.

2. (a) A Buick automobile, (b) a walnut bed room suite, (c) a night stand that is really a sewing cabinet, all claimed to have been donations intervivos from the decedent in the form of manual gifts.

3. The following articles that were purportedly purchased by her during her marriage with her own earnings: 1 cardboard storage cabinet for clothes; 1 9' x 12' brown wool rug; 1 small green throw rug; 2 small electric lamps for vanity dresser; 1 small 2-radiant gas heater; 1 walnut wood rocker. (She also listed in her petition a mahogany library table as falling into this category but testified on the witness stand that there had been a mistake made as to this table.)

We find no difficulty iñ concluding that the property listed ttnder the first item above, the living room suite, was acquired by the plaintiff before her marriage to the decedent and, therefore, is her separate property. Both she and her son testified to this effect and they are corroborated by the defendant, although his testimony, indefinite, vague, and contradictory on this phase of the case, would seem to imply that his father later purchased the furniture from the plaintiff and her former husband.

Nor do we have any difficulty in reaching the conclusion that the property listed under the third item belongs to the community, although purchased by the plaintiff during the marriage with her own funds, since, according to her own testimony, these amounts constituted money earned while she was living' with the decedent. Article 2402 of the Revised Civil Code; Prendergast v. Cassidy, 8 La.Ann. 96; Isaacson v. Mentz, 33 La.Ann. 595; Knight v. Kaufman, 105 La. 35, 29 So. 711; Succession of Manning, 107 La. 456, 31 So. 862; Houghton v. Hall, 177 La. 237, 148 So. 37; and Brownfield v. Southern Amusement Co., 196 La. 73, 74, 198 So. 656.

However, in determining the plaintiff’s right to the property listed under the second item, we deem it necessary to first give a résumé of the law on the subject matter.

Under the Revised Civil Code, a husband can give his wife, when he has children by a former marriage, only that portion of his estate that he could give to a stranger (Article 1752; Succession of Byrnes, 206 La. 1026, 20 So.2d 301), and when such donation is in the form of a manual gift of corporeal movable effects, accompanied by a real delivery, it is not subject to any other formality. Article 1539; Succession of Hale, 26 La.Ann. 195; Succession of Zacharie, 119 La. 150, 43 So. 988; Succession of Housknecht, 135 La. 818, 66 So. 233, L.R.A.1915B, 396; Hurley v. Hurley, 146 La. 337, 83 So. 643; Succession of McBurney, 162 La. 758, 111 So. 86; Gibson v. Hearn, 164 La. 65, 113 So. 766; Faison v. Patout, 212 La. 37, 31 So.2d 416. The burden of proof, however, rests upon .the one claiming the donation. Succession of Zacharie, supra; Succession of Housknecht, supra; Succession of Rageur, 155 La. 97, 98 So. 853; Succession of McBurney, supra; and Faison v. Patout, supra. See, also, Articles 2277 and 2288 of the Revised Civil Code.

An analysis of the cases cited above in connection with Articles 1539 and 1752 of the Revised Civil Code will show that the proof required in such cases must be strong and convincing that it was the donor’s intention to give the property.

In support of her claim to the property under Item No. 2, with the exception of the Buick automobile, we find in the record the plaintiff’s bare statement, uncorroborated by any other fact or circumstance; that these articles were gifts from her husband. From this evidence we are unable to ascertain with any reasonable degree of certainty that these gifts were intended as donations to the wife, they being in reality articles needed and commonly used in the home for the benefit of the community.

As to the Buick automobile, however, the plaintiff has offered other witnesses in corroboration of her statement that this car was a gift from her husband. All of these witnesses testified with reference to conversations they had with the decedent either prior or subsequent to the time the car was purchased. While such testimony may be considered in deciding the intention of the donor, “Proof of that intention must be made to appear by the manual gift itself, and not by statement of conversations held with the donee before or after the gift.” Succession of Hous-knecht, supra.

The plaintiff in relating to the court the circumstances under which the car was given to her said: “ * * * that afternoon when he came home he told me he had gotten me a surprise. I asked him what it was. He said, T cannot tell you. Wait until 5 :00 o’clock, you will find out.’ At 5:00 o’clock Mr. Lanier .brought the Buick.” Then, answering the question as to what the decedent had told her when the car was brought, she replied: “Just told me, ‘I bought you a car, see. How do you like it?”’

This testimony in itself certainly does not show that the car was intended as a gift to the wife any more than if the decedent had come in and told her he had bought her as a surprise a Frigidaire, a washing machine, or some other movable effect that is needed and .used by the community. The very testimony offered in corroboration of the plaintiff’s version of this matter, in our opinion, does not throw any further light on the subject. In fact, in most of the instances in which the plaintiff’s witnesses sought to corroborate her version of the matter, the husband and wife were using the car together. For example, Mrs. J. T. Walker testified that the plaintiff and decedent called her up one day and asked her to drive with them to Lake Arthur. On another occasion, the two -drove over to visit Mr. and Mrs. H. B. Dodson and there showed them the car. Besides there is some countervailing evi■dence. There were two witnesses who testified they often heard the decedent refer to the car as his automobile; one was a man who had known the decedent for 20 years and who had worked in the same shop with the decedent since 1938. The man who delivered the car to the house stated he had previously sold the decedent several cars and that when he delivered the car he did not hear the decedent make any statement to the plaintiff that the car was intended as a gift to her. In addition, the record shows the decedent not only bought the car in his own name but also insured it in his name as head and master of the community.

Under these facts and circumstances we do not think we would be justified in concluding that the car was intended as a donation to the wife within the meaning and contemplation of Article 1539 of the Revised Civil Code.

For the reasons assigned, the judgment of the lower court is annulled and set aside ■and it is now ordered, adjudged, and decreed, that there be judgment in favor of the plaintiff, Mrs. Jessie W. Funderburk, ■and against Victor Barnes Funderburk, executor of the succession of Edward Henry Funderburk, decreeing the plaintiff to be the putative wife of Edward Henry Funderburk, and, as such, entitled to half of all of the property acquired during the existence of the community, including the bank account and the movable effects listed in the inventory with the exception of the living room suite, consisting of an overstuffed davenport and two arm chairs, which is decreed to be the separate property of the plaintiff and ordered delivered to her, her claim for the improvements and repairs made to the immovable property of the decedent being non-suited. All costs are to be paid by the succession of Edward Henry Funderburk.

PONDER, J., absent.


author: PONDER, Justice.

text:
    214 La. 733
    KIPER et al. v. KIPER et al.
    No. 38249.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Rehearing Denied Jan. 10, 1949.

      Thompson, Thompson & Sparks, of Monroe, for appellant.
    Anders & Anders, of Winnsboro, for plaintiffs-appellees.
   PONDER, Justice.

The plaintiffs, James P. Kiper and Fred Kiper, brought suit against Mamie Kiper and Mrs. Addie Kiper Gahagan seeking to partition by licitation 110 acres of land located in Franklin Parish, alleging that they and the defendants are the owners in in-división, in equal proportions of the property as the children and sole heirs of their deceased parents, Samuel F. Kiper and Hannah E. Kiper, who died intestate.

The defendant, Mamie Kiper, admits in her answer that the plaintiffs and defendants are the children and sole heirs of their deceased parents, but avers that both of their parents left last wills and testaments. She avers that her mother was the owner of an undivided one-half interest in the property as the surviving spouse in community, and one-third of her father’s one-half undivided interest in the property through her father’s will. She avers that her mother left a last will and testament in olographic form bequeathing the property to her, which reads as follows, viz.:

“Winnsboro, Louisiana January 2nd 1941.
“This is my last will and testament.
“I revoke all prior wills by me made.
‘■‘Mamie Kiper has lived with me, has taken care of me and has been my sole support since the death of my husband S. F. Kiper. I will and bequeath to her my farm and home consisting of 110 acres of land in Franklin Parish and being the only land I own therein together with all household effects and will unto her all property of every kind real personal or mixed of which I may die possessed.
“The cattle now on my property are not owned by me, but are the separate and individual property of Mamie and I have no interest therein.
“I trust that all my children will respect my last wishes contained herein and will in no way or manner contest this will.
“I appoint my daughter Mamie Kiper executrix of this will give her full possession and seizen and dispense her from giving bond.
“This will is wholly written dated and signed by me in my own handwriting on this January 2nd 1941.
“(Signed) Mrs. Hannah E. Kiper”

She avers that her mother, by her last will, intended to compensate her for the services she had rendered her mother over a period of eight years and three months. She avers that her services to her mother were well worth $100.00 per month, or a total of $9,900.00, for the period of eight years and three months. She asks in the alternative, in event the will for any cause be annulled or reduced, for judgment against the plaintiffs for their proportionate part of the amount due her for the services she had rendered her mother. She asks for the probation of the will and to be appointed executrix.

The defendant, Mrs. Addie Kiper Gaha-gan, answered the suit supporting the position taken by Mamie Kiper.

The plaintiffs opposed the probation of the will and asked in the alternative for the disposition to be reduced to the disposable portion.

The judge of the lower court, on trial of the case, gave judgment recognizing the will and ordering its probation; reducing the disposition to the disposable portion, or one-third of the interest in the property owned by Hannah E. Kiper; rejecting the claim of Mamie Kiper for the services rendered the deceased; and ordering the costs to be paid out of the effects of the succession. The defendant, Mamie Kiper, has appealed. The plaintiffs have answered the appeal requesting an amendment of the judgment insofar as it decrees the will to be a remunerative donation. During the pendency of this appeal, James P. Kiper died and his son and only heir, James P. Kiper, Jr., has been made party to the suit.

Samuel F. Kiper died on February 23, 1936 leaving an olographic will bequeathing the property to his surviving wife, Mrs. Hannah E. Kiper. The inventory in his succession shows that he was the owner of one-half interest in this property at the time of his death and a one-half interest in movable effects, appraised at $115.00. The disposition in his will was reduced, on account of it being community property, by an agreement between the surviving spouse and heirs, and the surviving spouse was sent into possession of the one-third of the deceased’s undivided one-half interest in the property and the four children were sent into possession of the remaining two-thirds of the undivided one-half interest. The surviving wife, having acquired an undivided one-third of an undivided one-half interest in the property under the will of her deceased husband and being owner of an undivided one-half interest in her own right, as widow in community, became owner of a two-thirds undivided interest in the entire 'property.

Mrs. Hannah E. Kiper, the surviving widow of Samuel F. Kiper and mother of the parties to this suit, died on March 29, 1944 leaving the olographic will heretofore referred to bequeathing the property to Mamie Kiper.

It appears that Hannah E. Kiper was seventy-four years of age at the time her husband died. Mamie Kiper, who had been residing with her father and mother, remained with her mother and rendered whatever services were necessary up to the date of her mother’s death, at which time her mother was eighty-two years of age. Mamie Kiper and her mother resided on the farm over this period of time. While there is some dispute as to the services that Mamie Kiper rendered to her mother and the disability of the mother to perform the usual duties required in keeping house and looking after the farm, yet the preponderance of the evidence shows that Mamie Kiper did practically all the housework, attended to all the business in connection with the farm, and performed all the duties necessary for the comfort and welfare of her mother. From our appreciation of the evidence, the deceased suffered from illness during the latter part of her life which considered with her age required care and attention. While the testimony of the plaintiffs is to the effect that their mother was physically able to attend to the duties required of her, it is controverted by the defendants and to a great extent by the neighbors who testified in the case. However that may be, the evidence unquestionably shows that Mamie Kiper did most, if not all, of the housework; looked after the farm and rendered whatever services were necessary for the comfort and welfare of her mother. The other children only visited their mother a few times each year. Mamie Kiper testified that the money she had earned teaching school and taking census had been placed in her mother’s account and used for their joint welfare. While the exact amount that she earned is somewhat indefinite, there is no evidence to controvert her testimony. There was approximately seventy acres of this land that could be cultivated. The evidence does not show the amount of rentals derived from the land. Undoubtedly the parties to this suit did not prove the amount of the rentals because they were not substantial. At the time that Samuel F. Kiper died, as shown by the inventory in his succession, he and his wife owned in community the 110 acres of land involved herein and personal property of the appraised value of $115.00. Considering this fact, the fact that the rental of the property was inadequate to support the deceased, and the fact that Mamie Ki-per rendered whatever services were necessary, and the a ge of the deceased, it is evident that Mamie Kiper rendered valuable services to her mother.

It is contended that the bequest to Mamie Kiper is a remunerative donation intended to compensate her for the services she had rendered her mother.

The intention of the testator must be determined from the terms of the will, Article 1712, Revised Civil Code. In construing this article of the Civil Code, this Court has on numerous occasions pointed out that the intention of the testator expressed in his will must prevail over all other rules in the exposition of wills. The remunerative donation is designed to recompense for services rendered, Article 1523, Revised Civil Gode. The remunerative donation is not a real donation if the value of the services is slightly inferior to the value of the gift, Article 1525, Revised Civil Code. The rules peculiar to donations inter vivos do not apply to remunerative donations except when the value of the object given exceeds by one-half that of the ■charges or of the services, Article 1526, Revised Civil Code. A remunerative donation cannot be reduced below the estimated value of the services rendered, Article 1513, Revised Civil Code.

The outside value of deceased’s interest in the property is $4,000.00 and Mamie Kiper rendered services to her mother over - a period of eight years and three months. In computing the value of the services on a daily basis with the value of the gift it would amount to a wage of $1.31 a day. From our review of the services rendered to her mother, as pointed out heretofore, it would appear that they were well worth such amount. We, therefore, conclude that the value of the services is equal to the value of the bequest.

The testatrix states in her will that Mamie Kiper has lived with her, cared for her and been her sole support since the death of her husband. This expression of the testatrix is the recognition of an obligation on her part to Mamie Kiper. She then bequeathes her property to Mamie Kiper which shows the testatrix recognized the obligation and intended to compensate Mamie Kiper for the services she had rendered.

In the case of Succession of Henry, 158 La. 516, 104 So. 310, where the testatrix in her will bequeathed all of her property to her son to recompense him for services rendered her, this Court stated that the intention of the testatrix that the bequest made to her son should be a remunerative donation is beyond all question of cavil.

It is true that in the Henry case the testatrix had lived with her son and had stated in her will that she bequeathed him the property to compensate him for his services and to reimburse him for the expenses he had incurred on her account. However, the pronouncements of law made therein are equally applicable to the case we have under consideration. We pointed out in the Henry case that the rendition of services creates an obligation forming a legal basis for the transfer of property. We further pointed out that a bequest of this nature is not a real donation but a dation en paiement, the giving by the testatrix of her estate to the universal legatee in payment of his services which is not subject to reduction because of the legitime claimed by the forced heirs if the value of the services are equal or in excess of the value of the gift. We stated therein that the legatee was not suing the succession upon any contract or upon a quantum meruit for the value of the services, but claiming the bequeathed property, which he acquired by dation en paiement, for the services rendered having created the obligation and the legal basis for the transfer of the property in extinguishment of the obligation.

From a review of the jurisprudence of this State, it appears that the presumption arises that services rendered to a parent by a child are gratuitous if he be the only child, but the jurisprudence seems to be conflicting as to whether this presumption arises if there be more than one child. However that may be, where there is an expressed intention shown to compensate a child for the services rendered the presumption of gratuity does not arise.

Counsel for the plaintiffs has cited a number of decisions to the effect that the services rendered by a child to a parent are presumed to be gratuitous in the absence of an agreement or promise to pay or an intention on the part of the parent that the services should be paid for. We see no necessity to review these decisions since we have arrived at the conclusion there was an intention on the part of the testatrix to compensate Mamie Iviper for her services and in pursuance of such intention she had actually bequeathed the property to her.

For the reasons assigned, the judgment of the lower court is amended by reversing and setting aside that portion of it which' reduces the bequest to the disposable portion and Mamie Kiper is now decreed to be the owner of the testatrix’s two-thirds interest in the property. As thus amended, the judgment in all other respects is affirmed. All costs to be paid out of the effects of the succession.

O’NIELL, C. J., is of the opinion that the judgment appealed from should be affirmed.


author: ELLIS, Judge.

text:
    DUFRENE v. RODRIGUE et al.
    No. 3071.
    Court of Appeal of Louisiana. First Circuit
    Feb. 2, 1949.
    Rehearing Denied March 7, 1949.
    Writ of Certiorari Denied April 25, 1949.
    James I. McCain, of New Orleans, for appellant.
    Numa F. Montet, of Thibodaux, for ap-pellees.
   ELLIS, Judge.

Plaintiff has filed this ■ suit against Dr. Charles J. Barker, as Sheriff, and who was sheriff at the date the cause of action is alleged to have arisen; and against Emile Rodrigue and Emile Toups, who were deputy sheriffs under Dr. Barker on that date, and has also joined the United States Fidelity and Guaranty Company, the Sheriff’s official insurer.

Plaintiff alleged that on the night of September 16th, 1947, about 9:30 P.M., he passed the home of Mrs. Edgar Toups in Lockport, Louisiana; that he noticed a man in the rear of the Toups’ yard and he entered the side gate of the Toups’ property to ascertain who was lurking in this rear side yard, and that when he had entered the yard a distance of about, six feet, defendants Rodrigue and Toups rushed from behind a tree in the yard and grabbed plaintiff and advised him that he was being arrested as a “peeping tom.” Plaintiff alleged that he protested the arrest and denied the charge, whereupon both Rod-rigue and Toups began to beat him about the head and body with a black jack and lead pipe; that they struck him about fifteen times and, as a result of the blows, plaintiff’s left eye ball was crushed 4nd ruptured and he received numerous contusions about the head and had three false teeth knocked out. He alleged that he was then placed in an automobile, owned and driven by Junior Toups, and driven to Thibodeaux, Louisiana, parish seat of La-fourche Parish, by the two deputies in order that he might be placed in jail; that on the trip to Thibodeaux he lost much blood and was in great pain and fear, and requested medical attention which was refused with threats by the said deputies, Toups and Rodrigue; that the deputies were in the act of placing plaintiff in jail when Edward J. Bourgeois, Chief Deputy Sheriff, saw plaintiff’s bloody condition and took plaintiff from the custody of Toups and Rodrigue and took him to St. Joseph’s Hospital in Thibodeaux, Louisiana, where he was immediately hospitalized and, on doctor’s orders, was transferred by ambulance next day to Charity Hospital in New Orleans, where his left eye was removed and in which hospital he remained sixteen days recovering from the injuries received from Deputy Sheriffs Toups and Rodrigue. He further alleged that he was at all times submissive to arrest and that blows were unnecessarily inflicted on plaintiff by the deputies, who were acting in their ■ official capacity in making and maintaining the arrest; that the deputy sheriffs had been advised that on the night previous to the arrest someone had been prowling in the yard of Mrs. Edgar Toups, mother of the Deputy Sheriff Emile Toups, and the two deputies had concealed themselves in the yard prior to the time plaintiff entered for the purpose of apprehending any trespasser; that the deputies had been authorized by the Sheriff, Charles J. Barker, to so conceal themselves and make any arrest of any outsider entering the yard.

Plaintiff prayed for damages in the amount of $15,224.50 which was the amount itemized by him as due for the loss of his eye and teeth, pain and suffering and other injuries'received by him, together with expenses incurred on account of same.

A joint answer was filed by all the defendants in which they admitted that Rod-rigue and Toups were Deputy Sheriffs of Lafourche Parish at the time of the arrest; that they concealed themselves in the yard to make any needed arrest with the approval of Sheriff Barker, and that all their acts were in connection with the arrest while in their official capacity as Deputy Sheriffs. They further answered that plaintiff came on the premises of Mrs. Edgar Toups illegally and started toward a lighted window in the house, whereupon the two deputy sheriff’s arose and shouted at plaintiff to “Stop — you are under arrest;” that when said defendant Emile Toups was within arm’s length of plaintiff to place him under arrest, plaintiff “ferociously and madmanlike resisted arrest; plaintiff, without just cause or provocation, and without uttering a single word, then and there began to swing both of his arms and hands at this said defendant; struck this said defendant a number of times with his hands and closed fists and with all of the brutal physical force at his command; scratched said defendant on his left arm and thereby caused it to bleed; plaintiff then and there proceeded to also physically fight off in every physical fashion at his command all efforts of this said defendant to subdue him, plaintiff, in said defendant’s attempt to place him, plaintiff, under arrest, during all of which time your said defendant was attempting to hold plaintiff so that your other defendant, Emile Rodrigue, might place hand-cuffs upon plaintiff, and when plaintiff was so resisting, as aforesaid, the efforts of the said Emile Toups to so place him under arrest, and while plaintiff was striking your said defendant, Emile Toups, and scratching him as aforesaid, and while so refusing to submit to arrest, in an effort to subdue plaintiff to there place him under arrest, and in an effort to defend himself against, and to repel the said illegal and unprovoked assaults and batteries being then and there committed upon defendant, Emile Toups, by plaintiff, as aforesaid, defendant, Emile Toups, did, for such purposes, strike plaintiff twice about his body but not on his head or face, with a rubber billy which did not and could not commit the injuries complained of by plaintiff, the said Emile Toups at all times using no more force than was necessary to effect such purposes; that said rubber billy was of standard regulation and make, such as is used by law enforcement officers everywhere, and used and effective only for the purpose of stunning any law violator resisting arrest and for the purpose of merely subduing any law violator who might physically resist actual arrest, as plaintiff was then and there doing; that said two blows neither injured nor stunned plaintiff;”

“That all the while your defendant, Emile Toups was attempting' to subject plaintiff to arrest and to defend himself against plaintiff’s assaults, as aforesaid, your other defendant, Emile Rodrigue, was attempting to place hand-cuffs on plaintiff; that, while this said defendant, Emile Rod-rigue, was attempting to. so place handcuffs on plaintiff for the purpose of terminating his said resistance to arrest and to physically bring about his arrest, he, plaintiff, also struck defendant, Emile Rod-rigue, about the body and face, including a blow in his mouth which cut the said-Emile Rodrigue’s lips and mouth, causing his said mouth to bleed as a result of such blow;”

Defendants allege that plaintiff received his injuries when he, “fell to the ground on such rear gate chain to which' was attached the said cement block weight, plaintiff falling to the ground face downward on said chain and cement block, * * * ” and that: “such injuries were suffered by plaintiff when he fell to the ground at the rear gate of the said residence premises of the said Mrs. Edgar Toups in the manner herein above recited, where his face struck the rear gate chain and cement block while resisting arrest, all as aforesaid, causing to himself, plaintiff, the injuries about which he here complains, as a result of striking his face on said chain and cement block weight.”

Defendants further aver .that at no time did they or either of them use upon plaintiff any more force than ‘was reasonably and absolutely necessary to bring about his arrest and to defend themselves against plaintiff’s assaults and batteries.

The case was duly tried and the District Court for the oral reasons dictated; which are in the record, rendered judgment in favor of the defendants dismissing plaintiff’s suit at his costs. From this adverse judgment, the plaintiff has appealed. .

The record contains approximately three hundred pages of testimony, a great deal of which is immaterial under the pleadings and issues before the Court, as it makes no difference whether plaintiff was guilty of being a “peeping tom” or not. It is' admitted that the deputies had the right to arrest him as a trespasser. It is the manner and method of the arrest of which the 'plaintiff complains. ■ Of course, plaintiff denies the charge that he was a “peeping tom.”

The facts reveal that Mrs. Edgar Toups who was the mother of the defendant and deputy sheriff, Emile Toups, had complained to him that on the night previous to the arrest of the plaintiff some one had prowled about the premises and peeped in at the window. Toups thereupon obtained the assistance of the defendant and deputy sheriff, Emile Rodrigue, to sit in the yard and see if they could not apprehend the so-called “peeping tom.” The plaintiff testified that he was twenty-four years of age, never married, and had lived in Lockport for the last fourteen years except for approximately six months spent in the Military Service. He was discharged from the service with an honorable medical discharge. He was five feet' eight and one-half inches tall and weighed 151 pounds. Plaintiff was well acquainted with Mrs. Toups and, on the night in question, September 16th, 1947, at about nijie.P.M., was walking past her home on his way to his home when he stated that he noticed some man among the trees in the rear of the yard. Plaintiff finally went to the gate opening! into the side yard of the Toups’ home, which gate was about sixty . feet, from the main highway. This gate had a chain running from the inside of it to a post, an<j attached to this chain was a cement block about midway of it, and this block remained suspended above the ground at all times, and when the gate was opened the weight of the block was supposed to pull the gate closed. However, the gaté' had evidently sagged and caught on" the ground and, therefore, remained Open. This was the condition as shown by a picture offered by defendants. Plaintiff testified that he went through, this gate into the Toups’ yard to find out, if possible, the identity of. the man he claims he saw in the yard, and then to notify the Toups’ family.. He stated that when he got within about six feet inside the yard, the two deputies, Toups and Rodrigue, rushed from behind the trees and called to him, “Halt— you are under, arrest,” and also threw a flashlight in his face which temporarily blinded him. , Plaintiff recognized both Toups and Rodrigue. as he was well acquainted with them and knew they were deputy sheriffs.

Plaintiff-stated that when he sought to explain his presence in the yard, both deputies began .to beat him about the head and body. Plaintiff was of the opinion that he was struck with a billy and a lead pipe and he saw a billy in Rodrigue’s hand but did not know with what weapon Toups struck him. Plaintiff estimated, that he received about fifteen blows, most of them being on the skull and face. He testified that one of the first blows he received landed in his left eye, although he did not know which one of the deputies struck which blows. He testified that he was' never knocked off his feet and denies falling down at any time.

It is proven by the testimony that plaintiff had two bumps on the right side of his head, a bruised spot over his right ear, a severe eye injury which resulted in the remains of the eye being removed, and a bruise underneath the left arm between the shoulder and the elbow. Plaintiff also suffered the loss of three front false teeth, which he testified was due to a blow in the mouth struck by Rodrigue when his mouth was open- due to the fact that he was calling for his brother. The testimony reveals that plaintiff suffered no injuries to his nose, mouth or lips, but that his left eye-lid was badly discolored.

As Deputy Sheriff Toups was using a truck, he got his brother, Junior Toups, to take plaintiff, -himself, Rodrigue and a Mr. Lonnie Hargig, who- was also a deputy sheriff, to Thibodeaux where the jail was located, in order to place plaintiff in this jail. On the way to Thibodeaux, when they were near Raceland, Junior Toups flagged down a Mr. R. D. Chapm'an who was traveling on the highway and who stopped and came over to the Toups’ car where, plaintiff says, that Rodrigue told Chapman, "We have the peeping tom and he is well fixed.” Chapman threw a flashlight into the back of the car and looked at plaintiff. Plaintiff states that he asked for a doctor when they passed the residence of the Parish Coroner, Dr. Guy Jones, whereupon Rodrigue handed a blackjack to Hargis and told him to give plaintiff a few more licks if he asked for a doctor any more. Also, on the way to Thibodeaux -plaintiff testified that Rodrigue stated he was not sorry for what they had done to plaintiff— that he was in the Military Service only six months. It is admitted that the deputies did not stop at any time to secure medical attention for the plaintiff.

. Plaintiff testified that the deputies did not have a key to the jail and he sat down on the jail steps while one of them went to the home of Edward Bourgeois, Chief Criminal Deputy, who lived near by, in order to get the key to the jail; that while he was waiting he' heard defendant Emile Toups say that if the plaintiff wasn’t sent to the “pen” or Jackson and if he returned to Lockport that he would kill him. Plaintiff testified that Bourgeois came over to the jail and saw his condition and stated that he could not put him in jail but that he had to take him to a doctor. It was at this time that the handcuffs were taken off of the plaintiff, and Bourgeois then took plaintiff to St. Joseph’s Hospital, accompanied by Lonnie Hargis. Plaintiff was there turned over to Dr. Charles R. Daunis, who examined him and gave him emergency treatment. He remained in the hospital that night and next morning was examined by Dr. Guy Jones, Coroner of the Parish óf Lafourche. Later that day he was taken to Charity Hospital in New Orleans where his - left eye was removed and where he remained some sixteen days. ' A glass eye was put in place of the eye that was removed.

Plaintiff testified that he suffered intense pain and especially with head pains for eleven or twelve days. He testified that it would be necessary to obtain a new dental plate in order to replace the three teeth that were knocked out, which would cost him $150.00; that his glass eye had cost him $27.50; that he had paid $21.00 to the St. Joseph Hospital in connection with his injuries, and $37.00 to Dr. Daunis for medical services and $10.00 for medicine, making a total of $245.50.

Edward Bourgeois testified that at the time of Dufrene’s arrest he was Chief Criminal. Deputy Sheriff under Sheriff Barker; that the defendants, Toups -and Rodrigue, brought the plaintiff to Thibo-deaux to place him in jail; that as soon as he saw plaintiff, he noticed a small amount of blood on his shirt and blood coming from his eye and he “figured it might be a little serious,” so he told the officers he was going to take the plaintiff to the hospital. At this same time, he also noticed a discharge from the eye which “looked like glue,” and noticed that plaintiff had a couple of teeth missing. He and Lonnie Hargis took the plaintiff to the hospital and had Dr. Daunis look at him, and it was under this doctor’s advice that they left him in the hospital. This witness stated that he did not talk to the two deputies about the case, that he did not take time to find out anything about it, and when he was asked the question, “You were rushing, in other words,” he answered: “I wouldn’t say rushing, but I did think the boy needed to go to a doctor, I will say that.” (Italics ours.)

Mrs. Roland Price, a sister of the plaintiff, testified that she came to Thibo-deaux on the morning of September 17th and went to the hospital to see her brother. She testified that he had one big bump and a small one on the right rear part of the head, a bruise on his 'right ear, a bruise under his left arm, and a bandage over his left eye. She accompanied the plaintiff in the ambulance to the Charity Hospital in New Orleans. She testified that his shirt was torn on the front just below the collar, but that he had no bruises other than those stated above.

The defendant and Deputy Sheriff Emile Toups testified that he and his cot-defendant, Rodrigue, concealed themselves in his mother’s yard in order to apprehend, if possible, a prowler who had been, .there on the previous night. Plaintiff' eventually came into the yard and when he got close to the lighted window, he was ordered to halt with the statement that, “You are under arrest.” Toups stated that the plaintiff backed up and tried to' get back to the gate, and when he did, Toups threw a flashlight on him and attempted to catch him by the arm. He described plaintiff as being like “a wild man.” He testified plaintiff started striking at him and did strike him and his left arm was bleeding. He testified that he pulled his billy out o'f his pocket and ■ hit plaintiff twice but that the blows did not affedt him at all. He stated that the plaintiff then turned around and struck the defendant Rodrigue in the face, and he, Toups, then grabbed plaintiff from the back around the waist and that is when they fell near the little side gate. He testified that the plaintiff dragged him through this gate and it was after they had gotten through the gate that Rodrigue was able to put the handcuffs on him. Toups stated that Rodrigue did not strike the plaintiff at all. He also testified that when he and •the plaintiff fell on the ground, that he fell on top of plaintiff; .that plaintiff fell face down, and whi'le he, Toups, did not fall on the chain and. block, he thinks that the plaintiff did. . He stated that he did not believe he had struck plaintiff on the head. This witness also testified that when the defendant Rodrigue was snapping the handcuffs on the plaintiff, he let out a scream. Plaintiff contends that when he got outside the gate, he screamed, for his, brother and it was while he had his mouth open that Rodrigue struck him with his billy and knocked three false teeth out. Toups testified 'that after they had gotten him subdued, they put him in the back of Junior Toups’ automobile to bring him to jail in Thibodeaux. Hé denies seeing any blood on the' plaintiff or noticing his condition until after they got to the jail.

' The defendant, Rodrigue, testified to approximately the same facts as Toups. He stated that he and Toups were con-.ceáled in the yard, and when they called to the plaintiff to halt, that he was under arrest, the plaintiff tried to get back to the gate and began “swinging like a wild man”; that he struck the defendant Rod-rigue once in the mouth and scratched the arm of the defendant Toups. Rodrigue did not know whether Toups struck the plaintiff or not but he saw the plaintiff and Toups fall at the gate. It was after they had gotten up and outside the gate that he was able to put the handcuffs on the plaintiff. This defendant denies striking the plaintiff at all. Rodrigue also denies that on the way to Thibodeaux the plaintiff asked for a doctor and he told Hargis, who was on the back seat with plaintiff, if plaintiff asked for a doctor again, “Here is the black jack— let him have it a couple of more times over the head.” It was proven that Rod-rigue had struck a number of people with a billy on previous occasions, either in placing them under arrest or after they were under arrest. Rodrigue further testified that he was carrying both his pistol and billy that night.

Lonnie Hargis testified that he was a deputy sheriff and that he rode on the back seat of the car the night Dufrene was being brought to the Thibodeaux jail. He testified that Dufrene did ask for a doctor and he told him they would get 'a doctor as soonu as they got to Thibo-deaux. He testified that on the way to Thibodeaux, plaintiff Iwas talking and Rodrigue told him to shut up and told Hargis to give him “a little lick and he will shut up.” Although Rodrigue denied this in his testimony, as well as Toups, this proves the truthfulness of that portion of the plaintiff’s testimony.

Ed. J. Toups, Jr. was called as a witness on behalf of the defendants. He testified approximately the same as the defendants Emile Toups and Rodrigue as to the trip from Lockport to Thibodeaux. He was the brother of the defendant, Emile Toups.

R. D. Chapman was also called as a witness on behalf of the defendants and-testified that he met Emile Toups, Emile Rodrigue, Lonnie Hargis and Junior Toups with the-plaintiff on the highway between Raceland and Lockport; that they stopped him and he came over to their car, and flashed his flashlight on the plaintiff but that he could not tell very much about him. He testified that he did not remember making a statement to the effect that the plaintiff was the “peeping tom.”

Dr. Charles R. Daunis, who was called as a witness for the plaintiff, testified that he was on duty at St. Joseph Hospital in Thibodeaux on the night of September 16th, 1947 when the plaintiff, Dufrene, was brought in by the two deputy sheriffs; that his face was bloody and he was in extreme pain; that his left eye was “ruptured” and that the lens of his eye was on his cheek; that he found three front teeth fractured from his dentures and there was swelling on the right rear part of his head. He further testified:

“Q. Doctor, you say his face was bloody. If you will be kind enough will you elaborate more on that? How much blood was there? A. Over the left eye. There was very much blood so much so that I wasn’t able to examine the patient until the blood was removed by one of the nurses. The blood was over the eye socket and on the cheek. One of the nurses washed the blood off for me and then only was I .able to evaluate the extent of his injury.
“Q. Had there been any indication of bleeding for some time as far as you could determine? A. The blood was coagulated, clotted.”

Dr. Daunis also testified that it would be impossible to say whether the plaintiff’s eye had been cut or ruptured by a blow, but that it-could have been caused by a Wow in the eye. The doctor testified that the swelling or bruise on the rear of plaintiff’s head was approximately an inch and a half or two inches in diameter and approximately an elevation of one-quarter to one-half inch and that at the time plaintiff was in the hospital he was in extreme pain. He further testified that “Any object larger than the size of the opening would not touch the eyeball. The eye normally does not protrude beyond this ridge of the frontal bone.” The plaintiff had no other injury, according to the doctor, on his face other than to his eye. Dr. Daunis further testified:

“Q. You said you couldn’t tell whether this cornea had been out or whether the injury was caused by a blow? A. That’s correct.
“Q. You couldn’t tell? A. It would, be presumed it was by a blow, because of the discoloration of the surrounding tissues. (Emphasis ours.)
“Q. You would have no idea how the blow was inflicted? A. No, I have no idea.
“Q. Could such a blow have been inflicted by Dufrene falling down on the sharp edges of a block with a chain? A. Do you ask me if the laceration of the cornea could have been causing by falling against a sharp rock or the injury to the cornea plus the discoloration.
“Q. Yes. A. Both injuries, the discoloration of the upper and lower lids and the laceration could not have been jointly caused by a sharp instrument. They could not have been jointly caused simutaneously by a sharp instrument.
“Q. But it could be inflicted. A. I might, for instance, be struck in the eye with a pocket knife and then struck with a blunt instrument.
“Q. Couldn’t he have fallen on the square edge of a cement block that could have cut that eye? A. I don’t think it would have cut it in the manner described. The laceration was straight across.”

Dr. Thomas Casanova testified that he was at Charity Hospital on September 17th, 1947, when the plaintiff was brought there for treatment; that he found a laceration of the cornea of the left eye with “herniation” of the eye contents and “contusions of the periorbital area;” that by “herniation” of the eye content he meant extrusion of the eye content through laceration. He also found at that time that the three upper front teeth were missing and there were multiple abrasions and “contusions or bruises about the right side of plaintiff’s head. There were also area Contusions and abrasions about the thorax or chest. This doctor testified that “it was very suggestive that the patient may have suffered from blows by some blunt instrument. In my opinion, the laceration about the eye and contusions about the head and body were caused by trauma of a blunt instrument.” Dr. Casanova testified that it was necessary to remove plaintiff’s left eye.

Dr. Guy Jones was placed on the stand by defendants and testified that a laceration is. caused by an instrument of some sort that will cut, while a rupture is similar to a blow out; that he had read the testimony of Dr. Daunis with regard to the injuries suffered by the plaintiff and it was his opinion that such an injury could have been suffered by the plaintiff in falling on the chain and supporting cement block which was tied to Mrs. Toups’ gate. He further testified that for the plaintiff to have suffered an injury by a blow, it would have to have been struck at an exact angle. “It would have to hit the eye just this way — to cause a rupture of that eye. Any other way it wouldn’t effect the eye at all. It would have to hit it right this way — laterally.”

“By Mr. McCain: We would like the record to show that the witness in demonstrating that the injury could be caused by the blackjack that he held the blackjack parallel to the floor or ground horizontally with the end of the billy exactly between the frontal bone and the maxilla. A. And not hitting the nose.”

Dr. Jones testified that if the plaintiff had been hit in just that manner it could cause a rupture but not a cut, but it was his testimony that he could have fallen on the cement block and have had a cut or laceration of the eye. Dr. Jones saw the plaintiff at the Thibodeaux Hospital but did not make a complete or close physical examination and could only testify that there was a laceration of the cornea and the eye had to be removed. Dr. Jones did testify that you could put the blunt end of a pencil in the laceration of plaintiff’s eye without tearing it any more.

The judge of the District Court, in his written reasons for judgment, stated:

“During the course of the argument counsel for plaintiff made this accurate statement, that if the injury that plaintiff suffered was caused by blackjack judgment should be for plaintiff, but that if the injury was caused by falling on the block, that is, by some force or instrument other than the blackjack, judgment should be for the defendants.”

As we read the. testimony, the deputies deny that they struck the plaintiff in the head at all. Deputy Toups alleged and testified that he struck plaintiff twice about his body but not on his head or face. In the petition, it is set up that the plaintiff had received his injuries as a result of falling on the cement block, which block was shown to be approximately six by eight inches and, from the picture, is somewhat in a square shape. There is no dispute but that plaintiff’s injuries came after he got in the yard and were either inflicted by the deputies or received in the manner testified to by the deputies. We are of the opinion that plaintiff’s injuries were inflicted by these two deputies. It would appear impossible for plaintiff to have fallen face down 'on the stone and received his'eye injury as well as the bumps on the back of the head and on his right ear and under his left arm. We believe this for the reason that had he fallen face down on the stone with Deputy Toups’- added weight on his back (the testimony showed Toups weighed approximately 235 or 240 pounds) it would have been physically impossible for the plaintiff to have fallen- in this manner without bruising other parts of his face such as his nose, cheeks or forehead, and, also, this version could- not take into account the other injuries shown by the testimony. Surely he could not have fallen and received them all at one time. We are of the opinion that he did not fall; that this testimony is an after thought on the part of the two defendants to account for the most serious injury plaintiff had, to-wit: his eye injury. If he had fallen on the ground and struggled as viciously as- these two deputies would have one believe he did and had wrestled with Deputy Toups, there was no way to keep his clothes from showing evidence of it, at least by being very dirty, and there is no mention made of his trousers being torn or dirty or of his shirt being dirty. The testimony shows that his shirt was torn beneath the collar, which, in our opinion, is where the deputy grabbed him.

Also, it is the testimony of Doctors Daunis and Casanova that the eye condition was' the result of having been struck by a blunt instrument as his eyelids were also discolored, and had it been a sharp instrument, it would also have cut the eyelid. Furthermore, there is no testimony that would prove that his eye came in contact with a sharp instrument. The answer did not set up any such state of facts, as, for instance, that his eye was injured by running into a sharp branch, which theory was advanced by the 'deputies on the trial of the case as a possibility, although they did not testify that that was the means by which ‘ he received his injury. The answer did not set up that his injuries were the result of necessary force used to effect his arrest, in fact, the answer denies that the injuries were inflicted by the deputies at all.

Therefore, from the issues in the case, it is only necessary to decide whether he fell on a stone and suffered his injuries, or whether they were inflicted by the deputies. Another fact in the case in which we think the plaintiff is telling the truth is the manner in which he lost his three teeth, that is, that Deputy Rodrigue struck him in the mouth with a billy when he was screaming for help. The testimony shows that he had no bruises or injury on his lips or face other' than the eye injury and the three teeth knocked out. Therefore, when he' lost his teeth his mouth must have been open as testified to by plaintiff.

Deputy Sheriff Toups testified that he received a scratch on the arm which, to us .would be natural if he was beating on the plaintiff as we believe he 'was, or if the plaintiff was resisting this beating. The defendants testified that plaintiff also struck Rodrigue in the mouth causing it to bleed. There is no corroborating testimony from any disinterested witness or any of the other witnesses except Toups that Rodrigue received a blow which made his mouth bleed. Evidence of this injury must certainly have still been there and could have been seen by either of the numerous people who saw Rodrigue on this night, especially by the Chief Criminal Deputy in the jail, Lonnie Hargis, Chapman and others, if Rodrigue had shown it to them. Even if he did receive such a blow in the mouth, it must have been a very light one and would not, in our opinion, justify him, any more than the scratch on the arm of Toups would justify Toups in severely beating the plaintiff, as the facts prove was done in this case. The testimony showed that Rod-rigue weighed 195 pounds, was an experienced police officer as well as - was Deputy Sheriff Toups, and that Toups, as stated above weighed 235 or 240 pounds, while the plaintiff only weighed 151 pounds. There is nothing to show that the plaintiff was an experienced boxer or had any more strength than any ordinary 151-pound man, and we can see no reason why these two deputies could not easily have held this little man and subdued him, evgn if the plaintiff did resist, rather than to resort to the use of their billys. We believe the defendant deputies used a great deal more force than was necessary to effect this arrest.

Deputy Sheriff Toups testified that he was very much incensed or mad, which is only natural due to the fact that the prowler had peeped in the lighted window in the house occupied by his mother, sister and little niece. This was only natural, but as an official, he had no right to allow his personal feelings to overcome his obligations as a deputy sheriff. Deputy Sheriff Toups should not have been allowed to watch for a prowler at his mother’s home as one could anticipate that he would possibly work the prowler' over with his billy if he caught him; whether he resisted or did not resist.

Deputy Sheriff Rodrigue was shown by the record to have been quite a frequent user of the billy as means of subduing offenders of the law. In fact, the testimony shows that he used his billy in some instances without rhyme, reason or provocation.

Plaintiff testified that on the way to the jail he asked for a doctor and that Deputy Rodrigue handed his black jack to Lonnie Hargis and said, “If he don’t shut up give him another lick on the head.” The two deputies and Junior Toups, who were on the front seat emphatically deny this, however, when Lonnie Hargis was placed on the stand he corroborated plaintiff except that he testified he did not get the black jack. The witness Hargis admits sufficient of plaintiff’s statement to prove that plaintiff was telling the truth and the other three were not. We do not believe that plaintiff fabricated the conversations which he says took place and which the defendants deny.

The facts prove that plaintiff is shown to have received the injury to his left arm while his arm was up, due to the fact that this injury was underneath the arm and between the shoulder and elbow, which leads us to believe that he was protecting himself by throwing his arm up in front of his face at the time he received this injury.

From a study of this entire record, we are not inclined to believe that this plaintiff fought like a wild man. Had he fought like a wild man he would not have had many clothes left on, and only his shirt was torn and we believe this was done by one of the officers grabbing him on the collar in order to hold him and strike him.

We are of the opinion that it has been proven that these deputy sheriffs violated or failed to perform faithfully a duty required of them by law! The surety is liable as well for a deputy sheriff’s violations of 'an official duty or for a failure to perform such duty faithfully as for the sheriff’s violations or failure of faithful performance of an official duty. Sanders v. Humphries et al., 143 La. 43, 78 So. 168. If the deputy sheriff strike a prisoner whom he has in charge when there was no need for it, his conduct in so doing would have been the violation of an official duty, a malfeasance for which the sheriff and his surety would be liable. Gray v. De Bretton, La.App., 184 So. 390, 391; Bolton v. Severio, La.App., 25 So.2d 115; Brit v. Merrit, La.App., 35 So.2d 281. We are therefore of the opinion that the judgment of the District Court should be reversed and that there should be judgment against the defendants and in favor of the plaintiff.

For these reasons, we believe that plaintiff is entitled to an award of $3,000.00 for the loss of his eye and other minor injuries, pain and suffering, and also to the actual medical expenses proven which total $95.50. We do not believe that the mere estimate for the loss of three teeth out of the upper dental plate has been sufficiently proven, as there is no actual testimony in the record to support this item, and we also feel that the estimate itself is altogether too high.

For these reasons, it is ordered that the judgment of the District Court be reversed ánd annulled and that accordingly there be judgment in favor of the plaintiff, leve Paul Dufrene, and against the defendants, Emile Rodrigue, Emile Toups, Dr. Charles J. Barker, and United States Fidelity and Guaranty Company, insólido, in the full sum of $3,095.50 plus legal interest thereon from the date of judicial demand until paid and the defendants to pay all costs of these proceedings.

DORÉ, J., dissents, being of the opinion that the judgment of the District Judge is correct and it should be affirmed.