
    Agustín Delannoy, Plaintiff and Appellant, v. Heirs of Manuel Cividanes y Alonso, Defendants and Appellees.
    No. 7279.
    Argued May 26, 1937.
    — Decided April 22, 1938.
    
      Ramón G. Goyco and Angel Fiol Negron for appellant. G. Dominguez Rubio for appellees.
   Me. Justice Hutchison

delivered the opinion of .the court.

The district court dismissed a filiation suit for want of evidence sufficient to establish plaintiff’s status as a natural child. This is assigned as error. Witnesses for plaintiff testified substantially as follows:

Maria Delannoy, plaintiff’s mother:

Witness was the daughter of 'a laundress enrployed by Cividanes’ mistress; Alejandro, a brother of witness, was employed by Cividanes in a liquor shop which he kept in the house where he lived; when the mistress left Puerto Rico, Cividanes sent for Maria to take charge of the house, which she did; for about a month she occupied a room with a servant who had been in the house for some years; Cividanes then took her into his bed-room; some three years later, a child (now plaintiff herein) was born; the day before this event, Cividanes, at the request of witness, sent her into the country to the house of her mother; a few days later Cividanes visited the mother and child, paid the midwife, gave the mother two dollars and told one Vázquez, the owner of a nearby store, to let her have whatever she might need; thereafter he sent her money, four or five dollars at a time, by Alejandro; a month later, Cividanes married and took another house, but Maria returned and occupied a room in the liquor establishment or in the house where the liquor business was carried on; there she remained for another year or more when she quarreled with one Román Sobrino, a. partner or buisness associate of Cividanes, and returned to the home of her mother; later, having found employment, she left the child with its grand-mother; after another year or more, Civida-nes was passing through a place called Coqui, near Aguirre; he sent for witness who came to him with the child and had a talk with him; on this occasion he gave her five dollars, and told her to come or to send the child once a week on Mondays or Tuesdays to the same place; on a number of subsequent occasions, extending over a period of some years, he gave witness or the child three or four dollars at a time; Francisco Cividanes, a nephew of the putative father, introduced witness and her son, now plaintiff herein, to an attorney, who filed the filiation suit.

Maximina Colón:

Witness was employed as a servant by the mistress of Cividanes and when the mistress left Maximina remained in the house; Maria Delannoy, when she came, occupied a room-with witness for about a month and thereafter the Cividanes bedroom; Cividanes sent Maria to the country with her brother Alejandro just before the birth of the child; forty-one days after giving birth to the child Maria returned with it to the house where she remained some two years thereafter; Cividanes supplied its food, showed his affection for it and said that it was his child; the child was born in May; Cividanes married in June; witness went as a servant to the new Cividanes home; Cividanes gave witness money for the child and would say “Take this to my son”; often the child’s uncle, Alejandro, would go; he would say “Listen, Maximina, tell Don Manuel to send something to the baby”; then witness would deliver the message; he would give witness a couple of dollars and witness would send it by Alejandro; this was repeated a number of times, not a great many, on some four or five or six different occasions; Civi-danes, after his marriage, did not resume his sexual intercourse with Maria Delannoy; witness went once with Alejandro when he purchased supplies for Maria from Vázquez, and told Maria that Don Manuel had sent them; after Maria, returned with the child to Gnayama, Cividanes sent them supplies from time to time; witness was a servant in the house of Cividanes for three years before his marriage and for two years thereafter; Maria did the cooking, washing and ironing for Cividanes before his marriage.

Luis Vázquez:

Witness owned a store in 1896 and bought liquor from Cividanes during a period of eight or ten years; two or three days after the birth of the child, Cividanes left his phaeton near the store and visited the house of Maria Delannoy; he again visited the house some fifteen days later; Cividanes on the occasion of his first visit told witness to-let Maria have whatever she wanted and witness furnished her supplies for some thirty-five or thirty-seven days; Cividanes paid the bill; the mother of witness acted as midwife and Cividanes sent her a five dollar bill enclosed in a note of thanks; Maria was in the house of her mother forty-one days at that time and again some two or three years later.

Pedro Banks, coachman:

Witness corroborated the testimony of Maria Delannoy as to interview with Cividanes in Coquí; saw the child Agustín at times at the hacienda, when he would greet Cividanes and ask; his blessing*, and Cividanes would respond with a benediction and give him money; sometimes the child would accompany Cividanes in his coach to the public highway and then walk to Coquí while Cividanes continued his journey to Gua-vama; witness saw Agustín once in conversation with Civi-danes on the balcony of the Cividanes home in Guayama sometime after the death of Mrs. Cividanes.

Bamón Paina:

Witness corroborated María and the coachman as to the interview in Coquí; on two or three subsequent occasions Cividanes sent witness to find the child in Coquí, caressed the boy on his arrival and gave him money.

Alejandro Delannoy, brother of Maria:

Witness, when a child, was turned over by his mother to Cividanes with whom he remained nine years; when Maria came to live in the house, Cividanes sent witness for her; at the time of her confinement, Cividanes sent her in his phaeton to the house of her mother; Leonor Vázquez, mother of Luis Vazquez, was the midwife; Cividanes told witness to request her assistance; Cividanes went with witness in the phaeton the day after the child was born and saw it; he made another visit fifteen days later and again saw the child; he sent witness in the phaeton to bring Maria back to the house where she remained for two years; Cividanes provided for the mother and child during that period; thereafter during the four years that Maria lived in the house of her mother witness obtained his sister’s allowance from Don Manuel either directly or through Maximina who would go and ask him for it and he would give it to her and she would give it to witness; this continued throughout the six years that the child was in the house of its grandmother, to the time of her death; neither witness nor his sister, were ever paid any wages; Cividanes sent five dollars with Váz-quez to his mother.

Agustín Delannoy:

Witness corroborated the testimony of Maria Delannoy, llamón Paina and Pedro Banks as to interview with Civi-danes in Coqui but did not remember details; after that incident witness would go to Cividanes, ask for his blessing and Cividanes would respond; witness saw Cividanes a number of times in Coqui during the next few years and also at the hacienda Sabater; witness went to him for money because the mother of witness was living with another man by whom witness was not supposed to be supported, and Cividanes was his father; whenever witness went, Cividanes gave him something; witness went to him every other week or so until he was fifteen or sixteen years old when he began to learn a trade and for a time did not go; Cividanes treated witness as a father would treat a son; witness saw Cividanes last in 1924; when witness was about to leave for New York as fireman on a steamer, he asked Cividanes for a couple of dollars which he would need on landing in New York where he expected to remain, and Cividanes gave him $20.00; before that, in 1917 or 1918, during the war, witness enlisted in Aguirre, and his mother told him he was not' old enough but she was not sure of this, nor was witness; he told Civi-danes that he had enlisted, and Cividanes said he was too young; Cividanes did not want him to enlist; witness was a blacksmith and went to Cividanes for work; Cividanes said he liad a law suit and could not employ him but would give him work in two months; witness returned to Aguirre where he remained two weeks, then came to Guayama and obtained work with Eduardo Jaime in the ice plant; witness returned to Puerto Rico in December 1931; on Ms arrival, Francisco Cividanes, a nephew of the putative father, sent for him and introduced him to the attorney who later filed the filiation suit, and the attorney went with witness and Francisco Civi-danes to interview the mother of witness in Ag'uirre; it was Francisco Cividanes who took the attorney to see the mother of witness and played a part in the commencement of the action; he went with witness to the civil registry to see if the name of witness appeared therein; Francisco Cividanes treated witness as a relative and presented witness as his cousin to a number of people in his home; Rafael Cividanes also treated witness as a relative until the heirs received their rights from attorney An,glade; since then witness was not a relative, but a negro; Francisco and Rafael treated witness as a relative for several months after his arrival but not thereafter; witness went with Francisco on one occasion to the office of the attorney to ascertain why the suit had not been filed, and Francisco called the attorney’s attention to a mole or birth mark as the distinctive mark of a Cividanes.

It may be conceded that if this were all, or if the district judge had rendered judgment for plaintiff, the evidence for plaintiff would have sufficed to sustain such a judgment. It may be conceded that the case as a whole is a border case. In all of the cases upon which appellant relies, however, the evidence was most stronger than in the instant case. See Cruz v. Santiago, 24 P.R.R. 100; Montalvo v. Montalvo et al., 25 P.R.R. 800; Cruz v. Quiñones., 31 P.R.R. 323; Vega v. Heirs of Vega, 32 P.R.R. 548; Guadalupe v. Gonzáles, 34 P.R.R. 643; Colón v. Succn. of Tristani, 44 P.R.R. 163.

In the first four of these cases judgments for plaintiffs were affirmed. In the fifth and sixth, the evidence was strong enough to satisfy a majority of this court, notwithstanding the contrary view of a minority and of the district judge.

Cividanes and Ms mistress and Ms cousin, Román Sobrino, who was also a partner in the liquor business, all lived in the upper story of a house wherein the liquor business was carried on. Sometime before the marriage of Cividanes, his mistress left the island. Her departure was in fact, it seems, a condition precedent to the contemplated marriage. Sobrino and Cividanes both died before the commencement of the present action.

Maximina Santiago testified that Román Sobrino was also married and living with his wife in the house over the liquor establishment when Maria Delannoy returned thereto after the birth of her child. Defendants introduced documentary evidence to show that Sobrino was not married until some time in 1897. Maximina had been quite positive in her statement on cross-examination that Sobrino was already married when Maria Delannoy returned to the house. Aside from this discrepancy, however, she seems to have been a disinterested witness and her testimony withstood the test of cross-examination. It had at times a certain ring of truth which tended to make it somewhat stronger than the testimony of any other witness for plaintiff.

We shall not attempt to outline the testimony for defendant. It was of necessity negative in character. Nevertheless, the district judge was justified in attaching as he did, considerable importance to the fact that none of Cividanes’ closest friends had any knowledge of the fact, if it were a fact, that Agustín Delannoy was his natural son or that Civi-danes had treated him as a son. Guayama is not a large town. It was a smaller town in 1896. Cividanes, after the death of his wife, had natural children whom he discussed with his friends, openly acknowledged, and finally legitimated by making their mother his second wife.

Even after the lapse of nearly forty years, it was a significant fact' that among those who knew Cividanes best, no responsible disinterested witness could be found to corroborate the testimony of María Belannoy and tier son concerning the alleged ackno'wlegment of the latter by Cividanes as his natural son.

We find no such manifest error in the weighing of the evidence as to justify a reversal of the district judge’s finding that plaintiff had never been in the continuous enjoyment of the status of a natural child, as required by the law in force at the time of his birth and at the same time of most of the alleged acts relied on as evidence of acknowledgment.

Costs were awarded to defendant. This we think was error.

The judgment appealed from will he reversed as far as the award of costs is concerned and in all other respects, affirmed.  