text:
    Vincent A. MANCUSO, Sr., et al. v. SIGMOR DISTRIBUTING SERVICE, INC.
    No. 11727.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Edward M. Leonard, Jr., Leonard & Hayes, Morgan City, for plaintiffs.
    John E. Conery, Lippman, Hunter & Rawls, Franklin, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appeal from the judgment dismissing their suit for eviction of a lessee on a motion for summary judgment.

The issue is the propriety of the granting of the summary judgment.

We affirm.

Plaintiffs’ father in 1971 leased to the defendant certain property. The lease contained the following paragraphs:

“5. Use:
Lessee shall have the right to make such improvements on said property as it shall deem necessary or desirable for the purpose of operating thereon a service station or filling station. Lessee agrees that it will not conduct therein any business in an unlawful manner, and that it will not permit any nuisance to be maintained upon the premises.
“6. Purpose:
It is further agreed that this lease is contingent upon Lessee legally being able to secure necessary permits to build and operate a service station on said property.”

Plaintiffs assert that defendants are violating the terms of the lease by selling package liquor and grocery items in addition to those normally associated with a “service station or filling station”; they point to the two paragraphs quoted above as restricting the operation on the leased premises. Defendants admit the sale of grocery items and package liquor. Thus there is no dispute as to material fact.

The trial court granted the motion for summary judgment on the ground that it is common knowledge that service stations sell more than gasoline and that the sale of grocery items, beer and package liquor does not violate the terms of the lease.

We prefer to base our decision on the latter ground. We interpret the first sentence of paragraph 5 of the lease to be a grant of authority to make specific improvements to the property; it does not contain a prohibition of other use of the premises. The second sentence contains the prohibitions against illegal activities and nuisances only. Paragraph 6 contains protection for the lessee should there be a bar against the proposed primary purpose of the lease. It contains no limitation to service station use only.

Had it been intended that the premises be restricted to only service station use a simple unambiguous statement to that effect would have been easily incorporated in the lease. Instead, grocery items had been sold prior to the lessor’s death and beer and liquor prior to the death of Mrs. Mancuso, all without objection.

The judgment is affirmed at appellants’ costs.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Merlin A. BRISSET, Appellant, v. LHHRA, CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS, Appellee.
    No. 11734.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Jay C. Zainey, New Orleans, for appellant Merlin A. Brisset.
    H. M. Westholz, Jr., New Orleans, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Appellant has appealed from a Civil Service Commission decision that dismissed his appeal from actions taken by his employer, Charity Hospital of Louisiana at New Orleans. The issue is the propriety of the Commission’s dismissal on a Motion for Summary Disposition.

We affirm.

The Department of Civil Service received on January 10, 1977 a letter dated January 7 from appellant’s counsel. The pertinent portion reads as follows:

“On behalf of Mr. Merlin Brisset, Hospital Executive Housekeeper, Charity Hospital, New Orleans, Louisiana, we hereby file a Notice of Appeal, pursuant to Civil Service Rule 13.111, et al. Specifically, Mr. Brisset appeals from the third step hearing/decision in the grievances of Mr. Merlin Brisset held November 17, 1976, decision rendered December 7, 1976 (copy of decision attached hereto and marked Exhibit I). The decision covered three matters. The first two were ruled in favor of Mr. Brisset. The third contained in paragraph three of the decision is hereby appealed from for the reasons contained in the attached grievance form signed by Mr. Brisset dated December 20, 1976 and marked Exhibit II herein.
Mr. Brisset seeks removal of the suspension letter and any and all other letters in reference to this disciplinary action and a reversal of the decision rendered on December 7, 1976, in which it was held that the letter of warning to Mr. Brisset dated October 26, 1976, would ‘remain in file’.”

Attached were the report of a grievance hearing dated December 7, 1976 as Exhibit I and a lengthy “Proposal-Grievance Form” dated December 20, 1976 as Exhibit II. The statement contained a list of six grievances, only the first of which is relevant here. “1) On Monday December 12, 1976 I accepted from Mr. Donald Frazier an unjust suspension of three (3) days with loss of pay.” The relief sought was “1) Recend (sic) three (3) day suspension. 2) Full restoration of wages. 3) Removal of this suspension letter and any other letters in reference to this disciplinary action. 4) The right to be respected as a Department Head and the chain of command to be followed. 5) And a stop to this constant harassment tatics (sic) Mr. Frazier is applying.”

This appointing authority filed a motion for summary disposition of appeal alleging that the appeal was not timely. Plaintiff’s counsel thereafter filed an amended notice of appeal complaining of constant intimidation after the original appeal. This letter also contained the following paragraph:

“Mr. Brisset again seeks removal of the suspension letter and any and all other letters in reference to this disciplinary action and a reversal of the decision rendered on December 7, 1976. Mr. Brisset requests that this relief sought be made whole. Mr. Brisset further requests that the intimidation he is presently receiving and has received by Mr. Donald Frazier and others be immediately ceased. Mr. Brisset also requests removal of all documents of the attached disciplinary action from his personal file.”

Thereafter the appointing authority filed a supplemental and amending motion for summary disposition of appeal, repeating and expanding on the claim the appeal was not timely, and adding that the Commission was without jurisdiction and that insofar as the appeal referred to “any other matter asserted to form a basis of the appeal” the letter did not satisfy the Civil Service Rule requiring a clear and concise statement of the action complained of.

The Commission dismissed the appeal saying that the action complained of should have been the action of October 26, 1976, but that even if it were the report of December 7, 1976, the appeal was still not timely. It referred to the Grievance Form dated December 20, 1976 as follows:

“As basis for the appeal, reference is made to the reasons contained in the attached grievance form signed by Mr. Brisset and reference to the grievance statement indicates that Mr. Brisset is aggrieved by an ‘unjust suspension’ of three days with loss of pay, by a great amount of humiliation to which he evidently has been subjected and, further, that he is aggrieved by a new hospital policy that requires that employees to be disciplined shall receive the original copy of the disciplinary action.”

In the Application for Appeal and in brief to this court, appellant contends that the appeal was based on two grounds: the decision of December 7,1976 and the three days suspension of December 13, 1976. By brief, appellant concedes his appeal was not timely as to the December 7 report but reurges that the appeal of the December 13 suspension was timely.

Rule 13.11 of the Civil Service Commission provides that

“A notice of appeal must
******
“(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail; . . .”

We find that the Notice of Appeal, if it were intended to be an appeal from December 13 suspension did not meet the above provisions. The reference to “removal of the suspension letter and any and all other letters in reference to this disciplinary action” is not identified as to date and indeed is contained in the same paragraph complaining of the decision rendered on December 7, 1976. The reference to the attached grievance form is in another paragraph which speaks of it as containing the reasons for appealing the adverse decision in the December 7 report.

Because of this we believe, as did the Commission, that the only appeal in a “clear and concise statement” was from the December 7, 1976 report.

We therefore affirm at appellant’s costs.

AFFIRMED.


author: BLANCHE, Judge.

text:
    Jonathan C. HARRIS and all other residents and taxpayers of the State of Louisiana v. The TRUSTEES OF the LOUISIANA PUBLIC FACILITIES AUTHORITY, PUBLIC FACILITIES CORPORATION, et alia.
    No. 11658.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Jan. 25, 1978.
    See also, 358 So.2d 957.
    Jonathan C. Harris, Baton Rouge, for plaintiff-appellant Jonathan C. Harris, et al.
    Steve Hicks, Baton Rouge, for defendant-appellee Trustees of the Louisiana Public Facilities Corporation, et al.
    Fredrick Chevalier, Asst. Atty. Gen., Baton Rouge, for defendant-appellant State of Louisiana.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Jonathan C. Harris, individually as a resident and taxpayer of the State of Louisiana and as a representative of the class of all other residents and taxpayers’ of the State of Louisiana, brought suit against the Board of Trustees of the Louisiana Public Facilities Authority (LPFA), First Louisiana Development Corporation (erroneously sued as the “Public Facilities Corporation”), and the State of Louisiana challenging the constitutional validity of the creation of the LPFA and the validity of the actions taken by the Board of Trustees of the LPFA in authorizing the issuance of bonds to be sold to fund certain facilities and equipment for the St. Charles General Hospital in New Orleans. The trial court upheld the validity of the creation of LPFA, and the actions of its Board of Trustees were upheld subject to correction of various procedural defects in the proposed issuance and sale of the St. Charles General Hospital Series 1976 Bonds.

The defendant State of Louisiana, beneficiary of the trust, appealed from the judgment of the trial court. Subsequently, the State, in a joint motion with the trustees, dismissed its appeal. Thus, the only appeal before this Court is that of plaintiff Harris, who assigns three errors on the part of the trial court which we set out here as taken from his brief:

(1) The court erred in finding that the trustees herein are a “public corporation” of the State of La. under La. Acts 1976, No. 699, § 1, (R.S.) [La. R.S. 9:2341 D. (1976 supp.)].
(2) The court erred in failing to find that Executive Order No. 71 of August 23, 1974, was ultra vires and null.
(3) The court erred in finding that the activities of the trustees are a “public purpose.”

Regardless of how plaintiff specifies the errors of the trial court, the real issue is to challenge the method of financing public purpose projects in the State of Louisiana through public trust authorities formed pursuant to the Louisiana Public Trust Act, LSA-R.S. 9:2341-9:2347 (Act No. 135 of 1970 as amended by Act No. 699 of 1976).

Before discussing the specific assignments of error, we note the facts surrounding the alleged errors by quoting from the trial court’s well reasoned Written Reasons for Judgment:

“The Louisiana Public Trust Act governs the formation of public trusts such as the LPFA. It was enacted by the Legislature as Act 135 of the Regular Session of 1970. Act 135 has been amended by Act 699 of the 1976 Regular Session. The Act, as passed in 1970, was based upon Article IV, Section 16 of the Louisiana Constitution of 1921 which empowered the Legislature to ‘authorize the creation of express trusts for any purpose
“Act 135 authorized the creation of express trusts with, ‘ . the state, or any parish, municipality, political or governmental subdivision, or governmental agency or instrumentality of the state as the beneficiary thereof.’ Public trusts formed pursuant to the Act could be organized for the purpose of furthering any authorized or proper function of the beneficiary of the trust.
“The LPFA was formed August 21, 1974, pursuant to the provisions of Act 135 through the execution of an Indenture of Trust by Public Facilities Corporation, as Settlor, and five individual named trustees. The Indenture of Trust was presented to the Governor for acceptance of the beneficial interest. The Governor formally accepted the beneficial interest in the LPFA through Executive Order No. 71 issued on August 27, 1974. His acceptance on behalf of the State established the State as the beneficiary of the LPFA trust and constituted a contract between the State and the Settlor of the public trust authority for the purposes and in accordance with the stipulations specified in the trust indenture.
“The purposes of the LPFA, as set forth in its Indenture of Trust, are to promote, encourage, and further the accomplishment of all activities which are or may become of benefit to the State of Louisiana and which have a public purpose. The LPFA is authorized to provide funds for the cost of fulfilling the purposes for which it is created and to do so may incur indebtedness either unsecured or secured by all or part of its assets or revenues.
“In October of 1974, the LPFA acquired the Saint Charles General Hospital from National Medical Care of New Orleans, Inc. Funds for the acquisition were provided through the sale of $4,700,000 in bonds by the authority. The bonds so issued were to be retired entirely from self-generated revenues of the hospital. The LPFA then leased the hospital to Saint Charles General Hospital, Inc., a Louisiana non-profit corporation, for monthly rental payments sufficient to pay the principal, interest, and any redemption premium on the bonds of the 1974 issue. The hospital facilities have been operated since that time by Saint Charles General Hospital, Inc., pursuant to a Lease Agreement and Operation and Management Contract between Saint Charles General Hospital, Inc., and the LPFA.
“On October 6 and November 8, 1976, the LPFA Board of Trustees authorized the issuance of a second series of bonds in the amount of $5,725,000 to finance additional improvements and facilities at the Saint Charles General Hospital. Like the 1974 issue, these bonds were to be retired solely through self-generated revenues of the hospital. In accordance with the provisions of Act 699 of the 1976 Regular Session, which had amended the Public Trust Act, the LPFA submitted the 1976 project to the State Bond Commission for review. On October 28, 1976, the State Bond Commission authorized the publication of a ‘Notice of Sale of Bonds’ to announce the intention of the Bond Commission to sell the LPFA 1976 bond series on November 30, 1976.
“The plaintiff brought his action on November 9, 1976, and the LPFA has since that time delayed proceeding any further with the hospital projects.” (Record, pp. 159-161)

As to plaintiff’s first assignment of error that the court erred in finding that the trustees are a “public corporation” of the State of Louisiana under LSA-R.S. 9:2341(D), we can find no error. The significance of such a finding is that as a “public corporation” the trust is exempt from constitutional limitations applicable to the debts of political bodies or subdivisions of the State which lend and pledge its full faith and credit for the payment thereof.

This same principle was involved and ruled on by the Supreme Court in Bertrand v. Sandoz, 260 La. 239, 255 So.2d 754 (1971). There a public trust was created for the purpose of making improvements to a hospital within a hospital service district in the Parish of St. Landry. The hospital district was the beneficiary of the trust. The public trust was known as the Opelousas General Hospital Authority. The trustee sought to issue bonds to finance the aforesaid improvements, and their right to do so was challenged on the grounds that the bonds could not be issued without first complying with the constitutional mandate to submit such proposals to a public referendum.

In rejecting this argument, the Supreme Court stated that even if the hospital service district was a subdivision of the State, the requirement for a public referendum was not applicable because the “hospital service district incurs no debt, issues no bonds and levies no tax in this plan. It is the trust which will incur the indebtedness securing the revenue bonds.” Bertrand v. Sandoz, supra at 760.

Thus, the rule seems to be that a public trust as a public corporation that incurs a bonded indebtedness is not subject to the same statutory and constitutional restrictions as are imposed on the State or its subdivisions concerning the incurrence of a public debt because the public fisc is not liable for the payment of such debt. Bertrand, supra.

The trial court, in its Written Reasons for Judgment, made the following statement with which we concur concerning the “public corporation” aspects of the case:

“It is clear that a public trust authority created under the Public Trust Act is neither a political subdivision of the State nor a municipal corporation. It is a unique creature of the Legislature designated as a ‘public corporation’ in R.S. 9:2341. It is a corporation created by the Legislature and empowered to act for public purposes. The establishment of such an entity has been said to be within the constitutional powers of the Legislature by the Supreme Court * * * (Record, p. 166)

We now turn to the second assignment of error wherein plaintiff contends that the acceptance of the beneficial interest in the public trust delegates extensive sovereign powers of the State, which powers are properly reserved to the Legislature under Article 3, § 1, Louisiana Constitution of 1974. These consist of the power to adopt or make a classification of the persons to be benefited by the public trust; the power to appropriate, budget and expend public monies; the power to acquire, operate and encumber public properties; the power to legislate rules to govern public properties; the power to levy charges, fees and taxes to be paid by the public for the support and maintenance of a public project. It is contended that the acceptance of the beneficial interest of a public trust is a legislative function that may not be exercised by the Governor.

The trial court properly rejected these contentions because neither the law nor the record support such a finding. In our opinion, the acceptance by the Governor of the beneficial interest in a public trust is no more than an act on his part in accordance with legislative will to form a contract with the settlor of the trust for public purposes authorized by the Public Trust Law. It is ministerial in nature and constitutes the manner in which the State accepts the benefits of those trusts which are confected in accordance with statutory authority.

The trial judge, in his opinion, made the appropriate distinction, stating:

“The distinction between a legislative act which may not be delegated to the executive, and a ministerial one which may, indeed must, be delegated to the executive is set forth in Cooley’s Constitutional Limitations, 7th ed., at page 157: ‘The authority that makes the laws has large discretion in determining the means through which they shall be executed; and the performance of many duties which they may provide for by law they may refer either to the chief executive of the State, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty.’
“The Legislature enacted the Public Trust Act expressly granting authority for the creation of public trusts, and providing in the same act the method by which the authority was to be executed. It was the method of operation of the law which was delegated to the Governor, and through him to the LPFA trustees, not the power to make the law. The power to make law is exclusively a legislative function. The power to execute the law is properly an executive one.” (Record, p. 169)

Finally, we consider the assertion by the plaintiff that the court erred in finding that the activities of the trustees are a “public purpose.” The subject of “public purpose” was adequately and properly considered by the trial judge in his Written Reasons and we adopt his reasoning here:

“By its Indenture of Trust, the LPFA is given authority to act within the guidelines of the Public Trust Act to perform ‘ . . . public purposes conducted in the public interest,’ stated generally as,
‘To promote, encourage, and further the accomplishment of all activities which are or may become of benefit to the Beneficiary and which have a public purpose, . . . ’
followed by an illustrative listing of activities.
“R.S. 9:2341(B), enacted by Act 699, provides an illustrative list of, ‘public functions or purposes of the state.’
“The plaintiff contends that the ‘public purposes’ set forth in the trust indenture and the ‘public purposes’ set out in 9:2341(B) exceed the authorization provided by Act 135 of 1970, under which the LPFA was formed.
“Act 135 states that public trusts may be formed with the State as beneficiary, ‘ . and the purpose thereof may be the furtherance, or the providing of funds for the furtherance, of any authorized or proper function of the beneficiary.’
“It is clear that under the Indenture of Trust, Act 135, and Act 699, the LPFA is authorized to act for ‘public purposes.’ The lists provided in the statutes are only illustrative. The issue then is whether or not the purposes of the LPFA are public purposes.
• “A public purpose for the LPFA would be any ‘authorized or proper function’ of the State of Louisiana. A public function of the State is any function designed to improve or protect the general welfare of the people of the State. The LPFA is authorized to act in furtherance of the general welfare of the public. Any activities which it undertakes must be scrutinized in that light. Activities which it might undertake which are not designed to aid the public welfare are not authorized. To date, its attempts to aid in the improvement of health facilities in and around the St. Charles General Hospital all have a public purpose. The authority given to the LPFA by both Act 135 and Act 699 is essentially the same in scope, and it has not been exceeded.” (Record, pp. 183-185)

For the reasons given, we affirm the judgment of the trial court, with the costs to be paid by the plaintiff-appellant.

AFFIRMED.


text:
    HI PURE INDUSTRIES, LTD. v. ECCO HIGH FREQUENCY CORPORATION.
    No. 11676.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    William H. Cooper, Jr., Baton Rouge, for plaintiff.

      Victor L. Roy, III, Baton Rouge, for defendant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Ecco High Frequency Corporation, a New Jersey corporation, is appealing a judgment in a redhibition action allowing Hi Pure Industries, Ltd., $10,796.16, representing the purchase price, and consequential damages of $2,500.00.

An officer of plaintiff, Hi Pure Industries, Ltd., a Louisiana corporation domiciled in French Settlement and engaged in the development of a process to purify metals, contacted defendant Ecco in New Jersey to acquire an oscillator to be used in plaintiff’s development of a new process to purify aluminum. A demonstration of a used twenty-kilowatt power oscillator was made at the New Jersey plant and a sale was made. The machine, costing $7,600.00, was shipped to French Settlement. Accessories, costing $2,780.00, were shipped separately. The machine failed to work properly in French Settlement. A representative of defendant, the vendor-manufacturer, came to French Settlement and, at his suggestion, the machine was returned to New Jersey to correct its malfunction. A representative of plaintiff went to the New Jersey factory of defendant after the repairs were completed and witnessed the machine being operated at a high temperature. However, when the machine was returned to French Settlement, it would not function properly, and the plaintiff filed suit alleging redhibitory vices in the machine.

Defendant specified in its brief that the trial court had committed error (1) in failing to allow the defendant a credit for the price of the goods which were kept by the plaintiff and which the plaintiff continued to use, (2) in allowing the plaintiff to rescind the purchase of the high frequency oscillator based on redhibition and (3) in allowing the plaintiff to recover $2,500.00 in consequential damages.

As to the first error, the plaintiff in its brief agreed that the trial court had made a “technical error” with regard to the amount of $2,780.00 for goods purchased from defendant and which plaintiff continued to use. In view of this agreement by the parties, we hold that the judgment should be diminished by the sum of $2,780.00.

Regarding the second specification of error, we conclude from the testimony in the record that the representatives of plaintiff made it clear that the purpose of purchasing the oscillator was to melt aluminum which was necessary in the development of the aluminum purifying process; it was undisputed that the machine failed to melt aluminum when it was installed at French Settlement; and the defendant vendor was provided ample opportunity to correct any malfunction of the machine. Since the record fails to reveal any intervening cause that would prevent the machine from performing for the purpose for which it was purchased, it is our conclusion that the trial court was correct in determining that the sale of the machine should be rescinded in conformity with LSA-C.C. art. 2520, which provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

As to consequential damages, the plaintiff in his petition asked for $28,501.93. This covered a period of nine months’ expenses which the plaintiff alleged had been incurred in trying to start the Ecco machine. At the trial approximately seventy pages of testimony were taken to discuss, item by item, the checks involved in the alleged expenses. Our meticulous reading of this lengthy testimony left our minds more in a state of confusion than clarity. Consequently, we do not question the weight which the trial court gave to the evidence presented in support of the consequential damages suffered by plaintiff as a result of the machine’s nonperformance and affirm the award of $2,500.00 for damages which are the immediate and direct consequence of a breach of contract. LSA-C.C. arts. 1934 and 2545.

Accordingly, the judgment of the trial court is amended so as to reduce the award to plaintiff for the purchase price to the sum of $8,016.16. In all other respects, the judgment is affirmed. The costs are to be paid by the defendant-appellant.

AMENDED, AND AS AMENDED, AFFIRMED.


text:
    SOUTH CHOCTAW INVESTMENT COMPANY, INC. v. GULF VALVE SERVICE COMPANY, INC., et al.
    No. 11700.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Richard Mary, Baton Rouge, of counsel, for plaintiff-appellant South Choctaw Investment Co.
    Martin C. Schroeder, Jr., Baton Rouge, of counsel, for defendant-appellee Gulf Valve Service Co., Inc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

The trial court awarded South Choctaw Investment Company, Inc., as sublessor, $1,000 for damages beyond normal wear and tear to a building formerly occupied under lease by its sublessee, Gulf Valve Service Company, Inc. South Choctaw is appealing the quantum.

Gulf Valve was a tenant in the nine thousand square foot building for five years under a rental agreement which carried the customary provision requiring it to return the premises in good condition upon termination of the lease, normal wear excepted; and with the pre-contract knowledge of the sublessor, it conducted a valve repair and reconditioning operation serving the petrochemical business.

South Choctaw’s principal complaints as summarized in the trial court’s written reasons were that Gulf Valve left holes in the walls and ceiling, protusions of steel from the floor where equipment had been anchored, damage on the rear wall as a result of sandblasting, and debris on the premises and the interior of the building unclean.

For the alleged breach of the lease, South Choctaw asked for $12,350.00. South Choctaw also asked for 25 percent as attorney’s fees and additional damages for loss of rent covering the period of time during which repairs were made, but these demands were not raised on appeal and we will not review them here.

The trial judge notes in his written reasons that shortly before Gulf Valve’s lease expired that Charles H. Rabalais, who described himself as “owner” of the South Choctaw corporation, had quoted a figure of $1,000 as the amount he would charge to make the repairs to the building that he and Bobby Joel Hedrick, President of Gulf Valve corporation, had discussed.

We reject appellant’s contention that the $1,000 repair figure was to cover no more than the rear, side walls and roof.

On the matter of damages, the trial judge concluded:

“In the Court’s opinion, the overwhelming weight of the testimony shows that the defendant, through Mr. Hedrick, made a bona fide effort to restore the premises to reasonably good condition considering the use to which the building had been put and considering the normal depreciation occasioned by five years of use. The only exception — which he seemed to have recognized prior to the termination of the lease — deals with the rusting condition of the rear wall caused by his sandblasting operations and the holes in several panels and the ceiling created by the installation of his equipment. It appears that Mr. Rabalais’ initial estimate of the cost of repairs is a satisfactory one and, accordingly, the Court sets the sum of $1,000.00 to cover the repairs.” (Record, p. 35)

We have carefully read the 221 pages of testimony taken in the trial, studied the parts of the record and examined the exhibits. We concur with the trial court. Because we find no error, we affirm the judgment, with all costs to be paid by the appellant.

AFFIRMED.


author: COVINGTON, Judge.

text:
    LCR CORPORATION v. Raymond C. JOHNSON, d/b/a R. C. Johnson Construction Company.
    No. 11683.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    William L. McLeod, Jr., Lake Charles, of counsel, for plaintiff-appellee, LCR Corp.
    Doris Gates Rankin, Baton Rouge, of counsel, for defendant-appellant, Raymond C. Johnson, etc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the trial court in favor of LCR Corporation and against the defendant, Raymond C. Johnson, d/b/a R. C. Johnson Construction Company, in the amount of $3,201.76, but subject to a credit of $850.77, owed on an open account. We affirm.

The plaintiff, a building supply dealer, allegedly sold certain building supplies to defendant through his agent, Dennis R. Devrow. When defendant failed to pay the balance owed for the materials, the plaintiff instituted this suit on an open account. The defendant answered, denying that the materials were sold or delivered to him.

After hearing the testimony of the witnesses, the trial court determined that the debt, subject to certain credit, was owed by the defendant. In reaching this determination, the trial judge remarked:

“The principal issue in this case boils down to credibility bearing on the question of whether there was express authorization given by Johnson to LCR’s representative to permit Devrow to incur charges on the account. The Court believes that there was. While the power of attorney was confected after this credit application was acted upon by Capone (plaintiff’s credit manager), it rather confirms the fact that Devrow had Johnson’s confidence and Johnson intended for Dev-row to act to consummate his business transactions in the Lake Charles area. Further, on his first visit to the witness stand, the Court had the distinct impression that Johnson did not wish to deny the first telephone call from Capone, although his memory may have been somewhat hazy. With this finding, the Court concludes that Devrow and his employees were authorized to make the purchases described by Arndt (plaintiff’s sales representative) and that to the extent of the total of the purchases the balance of the account is correct.”

After reviewing the record, we believe that the trial judge correctly stated the facts and applied the law in making his decision. The credible evidence in the record reasonably supports his findings of fact. See Hoover v. Beatty, 323 So.2d 490 (La. App. 1 Cir. 1975). The absence of some invoices is of no consequence. Without them, there is ample evidence to support the conclusion of the trial judge.

The court disallowed plaintiff-appellee’s demand for an additional small sum representing a “service charge” of 12% annually on past due balances, as set forth in the credit application. The plaintiff has neither appealed nor answered the appeal; therefore, we need not consider that facet of the case.

We affirm the judgment at the appellant’s cost.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Ernest Griffin OBY v. Theresa Oby FLANAGAN et al.
    No. 11697.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Leila Withers, Baton Rouge, Murphy Bell, Baton Rouge, of counsel for plaintiff-appellant, Ernest Griffin Oby.
    Walter C. Dumas, Baton Rouge, of counsel for defendant-appellee, Theresa Oby Flanagan, et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is an appeal from a judgment dismissing the plaintiff’s suit on an exception of nonjoinder of indispensable parties. The defendants have not answered nor have they taken an appeal.

Plaintiff, Ernest Griffin Oby, filed suit against Theresa Oby Flanagan and Elliot Flanagan (then married to Theresa) to annul the sale of certain immovable property on January 14, 1957, by his father, Kernan Oby, now deceased, to Theresa Oby Flanagan. Plaintiff asserted this right as a forced heir of the vendor Kernan Oby. Kernan Oby died intestate on March 21, 1975, survived by his children of two marriages, namely, Thelma Oby Reed, Ernest Griffin Oby, Harriet LaRue Oby, Veoletta Oby Trice, and Charles Oby.

Plaintiff contends the trial judge erred in sustaining the exception of nonjoinder of indispensable parties and in dismissing his suit.

Where forced heirs seek to set aside the sale of lands by their ancestor as being simulations, such heirs are indispensable parties within the meaning of La.C. C.P. Article 641, who must all be joined as parties to the action. Succession of Terral, 301 So.2d 754 (La.App. 2nd Cir. 1974). The trial court was correct in sustaining the exception.

However, La.C.C.P. Article 934 provides: “When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.”

Nonjoinder of an indispensable party is a peremptory exception. La.C.C.P. Article 927.

In Succession of Guidry v. Bank of Terrebonne & Trust Co., 193 So.2d 543 (La.App. 1st Cir. 1966), this court held:

“ . • . (W)here the ground of the peremptory exception may be removed by amendment, no discretion is vested in the trial court to grant or deny time for amendment. In such instances the trial court must afford time for amendment

Article 934, supra, mandatorily requires that the trial court afford an opportunity to amend when revision can cure or remove the grounds upon which the peremptory exception is based, as in this case. Plaintiff should have been allowed time to amend his petition before dismissal.

For the above and foregoing reasons, the judgment appealed from is affirmed insofar as it sustained the peremptory exception of nonjoinder of indispensable parties, reversed insofar as it dismissed plaintiff’s suit, and the case is remanded to allow the district court to fix a delay in which the plaintiff may amend his petition in order to join all indispensable parties.

Costs of this appeal are assessed against plaintiff and defendants in equal proportion; all other costs are to await final disposition of the case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


text:
    Gerald MINOR v. UNITED STATES FIDELITY AND GUARANTY INSURANCE CO. and the City of Berwick.
    No. 11705.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    James B. Supple, Franklin, for plaintiff.
    Michael J. McNulty, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is an action in workmen’s compensation. On June 12, 1974, plaintiff, Gerald Minor, while employed as a Lieutenant in the Berwick Police Department, accidentally discharged his revolver and injured his left hand while at home. He claimed total and permanent disability under the Louisiana Workmen’s Compensation Act. Judgment was rendered in plaintiff’s favor and against the defendants, United States Fidelity & Guaranty Insurance Co. (U.S.F. & G.) and the City of Berwick, in solido, decreeing that plaintiff is entitled to weekly compensation of $65.00 per week for 500 weeks, subject to a credit of 23 weeks previously paid by defendants.

The defendants have taken a suspensive appeal; the plaintiff has not answered nor has he taken an appeal.

The defendants contend that the trial court erred in its finding that plaintiff’s injury was incurred in the course and scope of his employment as a police officer, and in its finding that plaintiff is totally and permanently disabled.

The record herein amply supports the findings of the trial court which we adopt as our own:

“Minor’s uncontradicted testimony was that he worked as an investigator for the Berwick City Police, was always ‘on call’ for such, usually ‘backed up’ patrolmen with problems (performing patrol work himself, occasionally), and normally was armed with a pistol.
“At the time of his employment, the vast majority of patrol responses were to barroom complaints; such responses, which he was called upon to back-up, required the use of his hands in handling people subject to arrest. On returning to work he found he was unable to use his left hand for that purpose.
“He thereupon left the Berwick Department (voluntarily) to go to work for the St. Mary Parish District Attorney’s office as an investigator, for better pay and under better conditions. The new job does not require physical contact as the prior job did.
“The doctor’s deposition pointed out both muscle atrophy and nerve damage, which made his left hand grip somewhat weak (loss of about 25%) and uncoordinated, and incapable of making a sustained physical effort. For example, if he grabbed someone by the clothes, they could get away from him; if he struck someone with his injured hand, he would experience substantial pain.
“John Schexnayder, patrolman, testified that Minor was always called as ‘back up’ in case of trouble. In such cases it is often necessary to hold or handle people, and Minor could no longer be depended upon to give the same physical help as he did before because of his weak hand. “Wilbert Nini, Chief of the Berwick Police Department at the time of Minor’s injury, testified that officers in Berwick are called upon for such physical activity.
“Chief Wright (of the St. Mary Parish Sheriff’s Department) testified that a ‘line policeman’ must have a ‘good pair of hands’; he would not hire someone who did not; and the cut-off point is ‘whether a man can handle the situations he is called upon to handle, and give his partner adequate support. . . . ’
“From the above, the Court concludes readily that Minor’s injury prevented him from doing work which he was customarily called upon to do prior to his injury to the extent that, under the Louisiana Workmen’s Compensation Act, he was totally and permanently disabled.
“The question of whether or not the Plaintiff was within the course and scope of his employment at the time of the accident is more difficult.
“Minor’s testimony showed that the night before the accident he had been involved in various arrests, not getting home until about 3:30 A.M. Normally he would have remained off duty until his shift the next day (2 P.M. until midnight) but, to process those cases, he had returned to the office at 8 A.M. While there, because of some personnel shortage, at the request of his superior he continued working through the morning, even eating lunch at the station. At approximately 1:30 P.M., he left the Department to go home to change clothes. This was because of a departmental rule that personnel should wear uniforms when on public duty. He had arrived in the morning in his jumpsuit, expecting simply to perform paper work in connection with the prior night’s arrests; had remained at the office to work at the request of Chief Nini, not changing because he would remain within the departmental office; and, only because he would be subject to patrol duty or outside call beginning with his regular shift at 2 P.M., then went home to change into uniform.
“While home, because he normally unloaded his pistol at any time it was in the house, he loaded it again while re-dressing and this time accidentally discharged it and suffered the injury in question.
“The Court concludes that this was not a situation in which Minor, who was on duty at the Department, left for personal reasons anticipating to return to resume duty. He was at work, and left solely in response to a departmental policy requirement. A departmental policy is in the nature of a standing order, and a person acting in response to a superior’s orders is in course and scope of employment. Jackson v. Long [La.App.], 289 So.2d 205 (1974). . . .
“The Court concludes that, under the circumstances, the plaintiff was within the course and scope of his employment at the time of the accident.”

The trial court’s decision is in accordance with the law and the applicable jurisprudence. La.R.S. 23:1031 and 1221; Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Johnson v. McGehee Brothers Furniture Company, 256 So.2d 741 (La.App. 1st Cir. 1971), writ refused 260 La. 1132, 258 So.2d 380; Denoux v. Hartford Accident & Indemnity Company, 336 So.2d 268 (La.App. 1st Cir. 1976), writ refused; Rutherford v. Dixie Concrete, Inc., 222 So.2d 508 (La.App. 4th Cir. 1969), and Launey v. Lawton Forest Products, 309 So.2d 901 (La.App. 3rd Cir. 1975).

The Judgment of the trial court is therefore affirmed at defendants’ costs.

AFFIRMED.


text:
    Martin PARFAIT v. Robert DEROCHE et al.
    No. 11707.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      John M. Robin, Michael E. Coney, Metair-ie, for plaintiff and appellant.
    Robert L. Morris, Houma, for defendants and appellees Deroche, Lirette, et al.
    Michael F. Kelly, Marksville, for defendant and appellee Tidewater Marine Service, Inc.
    Philip J. McMahon, Houma, for defendant and appellee Travelers Ins. Co.
    Lawrence E. Abbott, New Orleans, for defendant and appellee Petrol Marine.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is a suit for damages for personal injuries sustained by the plaintiff while employed by Delta Shipyard, Inc. as a fitter’s helper. A negligence action was filed on August 21, 1975, in which Reggie Lirette, Jr., Dennis Lirette and Robert Deroche, as executive officers and/or co-employees, directors, agents, or shareholders of Chromal-loy, Inc. and Delta Shipyard, Inc., a division of Chromalloy, Inc. in Houma, Louisiana, were named as defendants. In May of 1976, the said defendants filed an exception of no cause of action. The exception was sustained by the trial court in its original judgment on March 29, 1977 and again in an amended judgment on May 12, 1977. Plaintiff has taken this appeal; the defendants have not answered nor have they appealed.

ON MOTION TO DISMISS

Defendants filed a motion to dismiss the appeal under the provisions of La.C.C.P. Article 2085 which provides, in part, that an appeal cannot be taken by a party who voluntarily and unconditionally acquiesced in a judgment rendered against him. Defendants assert that the plaintiff unconditionally acquiesced in the trial court’s judgment because he allowed the exception to be sustained without opposition. We cannot agree. The amended judgment of the trial court reads:

“Judgment was originally rendered, read and signed in this case on March 29,1977. However in that judgment, it was inadvertently specified that counsel for plaintiff could present no opposition to the exception of no cause of action. The Court has now fully and completely heard the pleadings, evidence and arguments of counsel, and considering the law and the evidence to be in favor of the defendants the exception of no cause of action ... is maintained, . . ”

Plaintiff thereafter appealed this decision and did not voluntarily and unconditionally acquiesced in the judgment. The defendants’ motion to dismiss is therefore denied.

ON THE MERITS

Plaintiff contends that the trial court erred in sustaining the defendants’ exception of no cause of action and in dismissing his suit.

In the consideration of an exception of no cause of action, all well pleaded allegations of fact are considered as true, and it must be determined if a remedy is afforded to any one under the circumstances alleged, under any theory of the case. La.C.C.P. Articles 862, 927, 931; Economy Carpets Manufacturers and Distributors, Inc. v. Better Business Bureau of Baton Rouge, Inc., 333 So.2d 765 (La.App. 1st Cir. 1976); writ refused; Saragusa v. Dipaola, 247 So.2d 400 (La.App. 1st Cir. 1971).

In the trial court the defendants’ exception was based on the ground that plaintiff’s exclusive remedy against his employer is under the Longshoremen’s and Harbor-workers’ Compensation Act, 33 U.S.C. § 901, et seq., and that under said Act, defendants, as employees of plaintiff’s employer, enjoy the same immunity from tort liability as does the employer.

With respect to claims by employees against third parties the Longshoremen’s and Harborworkers’ Compensation Act provides:

“The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.”

Consequently, if the allegations of plaintiff’s petition, accepted as true, bring him under the exclusive jurisdiction of the LHCA, the judgment of the trial court sustaining defendants’ exception must be affirmed.

The Longshoremen’s and Harborworkers’ Compensation Act, as amended in 1972 provides:

“Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel.)” 33 U.S.C. § 903(a).

In Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), rehearing denied, the Louisiana Supreme Court reviewed the United States Supreme Court’s jurisprudence concerning the LHCA. Therein the Court stated:

“In Davis v. Department of Labor & Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), the Supreme Court coined the phrase ‘twilight zone’ to describe the shadowy area in which it was difficult to determine whether state or federal law should apply. In this area, if a worker elected to apply for state benefits his choice would be upheld and the application of state law presumed constitutional. In subsequent cases, the Court made it clear that an area of concurrent jurisdiction existed wherein workers injured on navigable waters, even when their occupations were traditionally maritime, could pursue remedies available under state compensation laws. Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959); Richard v. Lake Charles Stevedores, Inc., 95 So.2d 830 (La.App. 1st Cir. 1957), cert. denied 355 U.S. 952, 78 S.Ct. 535, 2 L.Ed.2d 529 (1958); Baskin v. Industrial Accident Commission, 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523 (1949); Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417 (1948).” . . .
A footnote to the above quotation states: “Both the Moore and Baskin cases involved workers engaged in the repair of completed vessels over navigable waters. It had formerly been held that such injuries were within the exclusive federal maritime jurisdiction and thus beyond the protection of state compensation remedies. John Baizley, Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819 (1930). Nevertheless, the Supreme Court affirmed the state court’s award of state benefits in Moore and reversed the denial of state benefits in Baskin, which denial had been based on the alleged exclusivity of the LHCA remedy.”

After reviewing these and other pertinent cases, the Court in Poche stated:

“What can be gleaned from an examination of these cases is that the United States Supreme Court has made it clear that state compensation laws can be constitutionally applied concurrently with the federal compensation system to some, if not all, categories of maritime workers. While the Court has never overruled Jensen [Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086], it has demonstrated that the uniformity of the federal maritime law is not materially prejudiced by the operation of state compensation remedies even in areas where the federal law is also applicable.6 Now that the amendments to LHCA cover land-based workers traditionally falling under the exclusive coverage of state acts, we see little reason to conclude that the concurrent application of the two compensation systems is any more inimical to the maritime law than was the case before the 1972 amendments.” (Footnote Omitted).

Accordingly, the Louisiana Supreme Court found no constitutional impediment to the concurrent operation of the LHCA and Louisiana Workman’s Compensation Act with respect to injuries sustained on land in the course of new ship construction. Additionally, in Poche, the Court approvingly reiterated the pre-1972 holding of a Louisiana Fourth Circuit CQurt of Appeal decision in Arp v. Maryland Casualty Company, 170 So.2d 166 (La.App. 4th Cir. 1964) that at least as to a shore based repairman injured aboard a vessel, the state compensation system could apply.

In the instant case plaintiff’s petition alleges that his injury occurred when he slipped on a device referred to as a syn-chrolift, after being instructed to make certain repairs to the vessel. The synchrolift is a submerged apparatus designed to lift a vessel from the water in order to effectuate necessary repairs to the vessel. Unlike a dry dock, however, the synchrolift as well as the vessel remains over the water. However, although such activity is maritime in nature, a shore based fitter’s helper, like plaintiff, by the allegations of his petition, falls in the “twilight” area.

Since we find that plaintiff falls in this “twilight zone” he can elect to seek compensation under LHCA or under the Louisiana Workman’s Compensation Act in light of the concurrent operation of the compensation systems as outlined in Poche. Since plaintiff may elect to seek benefits under the Louisiana Workman’s Compensation Act his petition states a cause of action as against these defendants pursuant to La. R.S. 23:1101. Accordingly, the judgment of the trial court is reversed.

Finally, in brief the defendants point out that plaintiff is now precluded from electing under the compensation laws of this state for the reasons that he has already elected to pursue his remedies under the LHCA. There is no evidence in the record to support this allegation, and, even if there were, we could not consider such evidence in our consideration of the exception of no cause of action.

For the above reasons the judgment of the trial court sustaining defendants’ exception is reversed and judgment is rendered dismissing defendants’ exception at their costs.

REVERSED AND RENDERED.


author: WATSON, Judge. DOMENGEAUX, Judge,

text:
    Elwood DUGAS v. COCA COLA BOTTLING COMPANY.
    No. 6180.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Writ Refused April 28, 1978.

      Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, for defendant-appellant.
    Cline, Miller, Richard & Miller by Larry T. Richard, Rayne, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

Elwood Dugas, plaintiff, sued the Coca Cola Bottling Company, defendant, (later identified correctly as Coca Cola Bottling Company of Lake Charles, Inc.), contending that a coca cola bottle had exploded in his hand and the bottling company was responsible for his damages. From a judgment of the trial court in favor of Dugas for $10,-131, the bottling company has appealed, urging that the trial court erred in finding as a fact that Dugas was not in the process of opening the bottle with a plumber’s basin wrench at the time of the accident and erred in applying the doctrine of res ipsa loquitur to cast defendant.

On November 26, 1973, at approximately 2:30 in the afternoon, Dugas, a plumber and part-time musician, was present at Boo Boo’s, a lounge or nightclub located between Lafayette and Breaux Bridge. Du-gas was supervising plumbing work in connection with the remodeling of Boo Boo’s. The part-owner, J. V. Boulet, asked Dugas to fetch some cokes from a case in the storage area. Dugas did so and, since there was no bottle opener handy, he took his plumber’s basin wrench in hand to open the bottles.

The plumber’s basin wrench, which is in evidence, is a device used to tighten or loosen nuts or fittings which are in inaccessible areas. It consists of a long, slender steel rod with a claw-like wrench device on one end and a steel rod which serves as a handle on the other end. The claw, which is half circular in shape with teeth on the inside, is movable so it can be positioned to operate when the wrench is turned either clockwise or counter-clockwise.

Dugas had two cokes. He placed one between his legs and attempted to open the other with the basin wrench.

The trial court held, as a matter of fact, that Dugas had not begun to open the coke bottle when it broke or exploded, causing a cut to his left index finger and left little finger. Due to his injury, Dugas lost about 10 weeks of work and also lost, according to his testimony, his ability to play the guitar professionally. Fortunately, after the accident, he took and passed the test to become a master plumber licensed by the city of Lafayette, and he has returned to work as a plumber.

At trial, plaintiff presented himself and three witnesses who were present at Boo Boo’s when the accident happened. The defendant called only one witness, an expert in the field of physics who gave testimony concerning the breaking of bottles. In rebuttal, plaintiff questioned the driver of the coca cola truck which serviced Boo Boo’s Lounge.

After hearing the witnesses, the trial court concluded that:

“Plaintiff’s witnesses indicated that he had not yet actually begun opening the bottle when it exploded.” (TR. 93).

The trial judge added:

“Plaintiff presented several witnesses who testified to the fact that he did not mishandle the bottle. This evidence establishes that before the plaintiff actually started opening the bottle it exploded.” (TR. 93).

On these factual findings, the trial court concluded that plaintiff had established he did not mishandle the coke bottle, and this showing, together with the bottle’s explosion, makes defendant negligent as a matter of law. In effect, the theory of res ipsa loquitur was applied.

There are two issues for review on appeal: (1) whether the trial judge erred manifestly in finding that plaintiff established he had not begun opening the bottle of coca cola when it broke or exploded; and (2) whether the doctrine of res ipsa loquitur is applicable to this case.

A careful study of the record indicates that the witnesses called by plaintiff did not testify that Dugas had not begun opening the bottle when it broke. There were only three witnesses in addition to the plaintiff.

The plaintiff was candid about it; he testified:

“Q. Do you know if you had actually begun to open it?
“A. I don’t think so. I couldn’t swear to that. I don’t think so, no; as far as I can recall.” (TR. 120)

and later on cross-examination:

“Q. It would be fair to say, then, that you don’t know, really, the position of the wrench, with respect to the bottle cap, at the time the breakage occurred?
“A. Well, in approximately that position. Whether the teeth were on the cap, or not, that I can’t remember.
“Q. And you don’t know how much pressure you may or may not have been exerting on the wrench, and on the bottle, at the time the bottle broke?
“A. No, I have no way of knowing.” (TR. 134).

Plaintiff’s first witness, Valerie June Boulet, said, when asked how Mr. Dugas was injured:

“It was in the process of him opening a coke bottle, with this wrench. He had one coke in between — just about at his knees, and the other one in his hands. And he was in the process of opening it, and it was this — this sound, that caught my attention. And when I looked up, he had — er—the coke and the blood, was both — they both were just gushing out, you know.” (TR. 143).

Rene Prejean, second of plaintiff’s witnesses, testified as follows:

“Q. Do you know how the accident happened; or what happened?
“A. Er — I saw Mr. Dugas trying to open a coke bottle with a lavatory wrench; a basin wrench.
***** *
“Q. Do you know whether or not he had the wrench on the bottle, at the time that the accident happened?
“A. No, sir, I don’t.
“Q. Do you know if he had attempted to open it, when it happened?
“A. Er — I imagine he was in the process.” (TR. 161).

In addition to Rene Prejean’s testimony in court, the plaintiff introduced Prejean’s deposition, which is more detailed and more positive concerning the accident. In part, Prejean’s deposition reads as follows:

“Q. Were you present when Elwood was hurt?
“A. Yes, sir, I was.
“Q. What happened?
“A. He was in the process of opening a coke bottle with a lavatory wrench. ******
“Q. How was he using it? Do you know? How was he using it to open the bottle?
“A. Well, I think he was holding the bottle in either his right — I don’t remember what hand he was holding the bottle in, but he had the wrench on top and I would imagine he was trying to pull the cap off.
“Q. Had he touched the bottle when it broke? Had he touched it with the wrench when it broke?
“A. I believe he had, yes.
“Q. In other words, it broke while he was in the act of pulling the cap off?
“A. Right.
“Q. The best you can recall is that he had the looped end of the wrench which is this top part here, hooked over the cap and he was pulling on it?
“A. To me that’s how it was done, yes. It happened real quick, you know, I was just looking at him one minute and the next minute he was full of blood.” (TR. 65-66).

The final witness for plaintiff was Irene Nero whose testimony, under questioning by counsel for plaintiff, went as follows:

“Q. He was using this? And what was he doing with the wrench?
“A. Trying to open a bottle of coke.” (TR. 171).

She added, when asked:

“Q. Did you know whether or not he had actually attached the wrench to the bottle, at the time of the accident?
“A. Well, the only thing I can remember seeing, was that that little hook, was on top of the bottle.
“Q. Do you know whether or not he had actually attached it to the bottle, and attempted to open it?
“A. No, not that I know of, sir.
“Q. You don’t know?
“A. No.” (TR. 172).

Considerable argument has centered around the answer of Mrs. Nero which read, “No, not that I know of, sir.”, which has been interpreted to mean that she stated that she knew he had not begun to open the bottle. Her answer to the following question, which is usually overlooked, indicates that she really did not know whether he had begun to open the bottle. The question was simply “You don’t know?” and she replied “No”.

Therefore, far from establishing that Du-gas had not begun opening the bottle when it broke or exploded, the testimony of all of the three witnesses who were present when the accident occurred is to the effect that Dugas was in the process of opening the bottle when it broke.

The factual conclusion of the trial judge to the contrary is manifestly erroneous. There is no reasonable evidentiary basis to support the- factual finding that Dugas had not undertaken to open the bottle when it broke. To hold that the trial judge’s conclusion must be accepted under the manifest error rule would be to overlook the testimony of the witnesses and would misapply the manifest error rule. See Canter v. Koehring Company, 283 So.2d 716 (La., 1973) and Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3 Cir. 1974) writ denied La., 303 So.2d 187.

There is no issue of credibility here; there is no inference of fact to be drawn from the testimony of these witnesses. When the witnesses testify uniformly as to what occurred and when the trial judge misunderstands or misconstrues their testimony there is manifest error and the finding must be reversed on appeal.

The next question is the legal effect of manifest error as to the facts. One who undertakes to open a bottle of coca cola with a basin wrench, breaking the bottle in the process, is negligent. He is negligent even though he may have opened other similar bottles with a basin wrench on prior occasions. Even though it is possible to open a coca cola bottle with a basin wrench according to the expert witness, Dr. James Riley, a professor of physics at Drury College, this witness also testified that, if the shaft of the wrench is placed incorrectly or slips inadvertently only a half inch or so, the claw of the wrench grasps the entire top of the bottle instead of the cap and breaks the bottle without removing the cap. This testimony is consistent with the fact that, according to the witnesses Nero and Boulet, the cap was still on the bottle following plaintiff’s accident. The fact that the cap was still on the bottle is a strong indication that the accident occurred from the wrench twisting the top off the bottle rather than lifting the cap.

Under the circumstances described, the doctrine of res ipsa loquitur is not applicable. This doctrine would obtain only if plaintiff had established that he had not mishandled the bottle. Here, the most plausible and, indeed, the inescapable inference as to the cause of plaintiff’s accident is his own negligence and not that of the bottler. Where the inference of plaintiff’s negligence is just as strong as that of defendant’s, the doctrine of res ipsa loquitur does not apply. Taylor v. CNA Insurance Group, 300 So.2d 479 (La., 1974). A fortiori, where the inference of plaintiff’s negligence is stronger, res ipsa loquitur is inapplicable.

Therefore, for the reasons assigned, the judgment of the trial court is reversed and plaintiff’s claims are dismissed at his costs, both on trial and appeal.

REVERSED AND RENDERED.

DOMENGEAUX, J., dissents and assigns reasons.

FORET, J., dissents for reasons assigned by DOMENGEAUX, J.

DOMENGEAUX, Judge,

dissenting.

The majority takes the' position that there was no reasonable evidentiary basis to support the trial judge’s factual finding that Dugas had not undertaken to open the bottle when the explosion occurred. I disagree and respectfully dissent from the majority view which, in my opinion, has violated the principle of appellate factual review enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

This principle of appellate review was stated by Justice Tate in Canter as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In my opinion, the inference drawn by the trial judge that Dugas had not begun to apply any pressure to the bottle and that, therefore, he did not mishandle it when the explosion occurred, was at least as reasonable as the inference drawn by the majority that Dugas had negligently begun opening the bottle with the plumber’s basin wrench at the time of the explosion. There was no direct evidence one way or the other; however a review of the facts contained in the record taken as a whole clearly gave rise to circumstantial evidence which reasonably supported the trial judge’s conclusion. I will attempt to set forth those aspects of the record which I feel are germane.

The bottle which exploded was lost and, therefore, was not introduced at trial. However, there was a drawing depicting the appearance of the bottle after the explosion introduced into evidence. The accuracy of the drawing was substantiated by plaintiff’s witnesses. Defendant’s expert witness, a professor of physics, testified that in his opinion the pattern of glass breakage indicated in the picture was inconsistent with that which could be expected from a bottle broken by a plumber’s basin wrench. Although there were several persons in the immediate vicinity of the accident, there were no eye witnesses to the accident other than the plaintiff. Plaintiff’s testimony indicated that, as far as could be recalled, no pressure had been applied to the bottle cap in an attempt to pry it off the bottle. The exact words, quoted by the majority, are:

“Q. Do you know if you had actually begun to open it?
A. I don’t think so. I couldn’t swear to that. I don’t think so, no; as far as I can recall.
[0]n cross-examination:
Q. It would be fair to say, then, that you don’t know, really, the position of the wrench, with respect to the bottle cap, at the time the breakage occurred?
A. Well, in approximately that position. Whether the teeth were on the cap, or not, that I can’t remember.
Q. And you don’t know how much pressure you may or may not have been exerting on the wrench, and on the bottle, at the time the bottle broke?
A. No, I have no way of knowing.”

One of the persons in the immediate vicinity of the accident, Irene Nero, cleaned up the mess. She testified that the cap was on the bottle after the explosion and that it had not been bent or damaged in any way. Another witness, Valerie June Boulet, was emphatic in her testimony that the cap was still on the bottle after the explosion. The majority has interpreted this to mean that Dugas had applied pressure to the glass part of the bottle with the wrench. I feel, however, that this could indicate that Du-gas had applied no pressure to the bottle whatsoever.

Defendant sought to establish by the testimony of its expert, Doctor Riley, that the coke bottle in question could not have exploded in the absence of external pressure being applied to the bottle. This witness testified that a 6V2 ounce Coca-Cola bottle, the same size bottle that caused plaintiff’s injuries, is one of the strongest of all the company’s containers, capable of sustaining internal pressures of 375 pounds per square inch. He also testified that a bottle shaken at 75° F would reach a pressure of less than one hundred pounds per square inch. It would seem that this testimony would make inescapable the conclusion that plaintiff must have broken the bottle while applying pressure to it with the basin wrench. However, in rebuttal, plaintiff called Norman Usie, the salesman-delivery man who regularly serviced Boo Boo’s Lounge. Usie testified that bottles would often burst during normal delivery. He stated that he sometimes heard bottles popping on the delivery truck because of normal road vibrations and the heat of the day. Thus, it could be concluded that the bottle broke for a reason other than the application of the basin wrench.

In summary, I feel that the following reasonable inferences can be drawn from the evidence:

1. Coke bottles are known to burst on their own accord without the application of external force (testimony of Usie);
2. Plaintiff did not think he had begun to apply pressure to the cap or the bottle with the basin wrench (testimony of plaintiff);
3. Plaintiff, in fact, applied no pressure to the cap or bottle because the cap was still on the bottle after the explosion and was not bent or damaged in any way (testimony of Nero and Boulet);
4. Based upon the drawing of the broken bottle, it was unlikely that the bottle was broken with the basin wrench (testimony of Doctor Riley).

These inferences unquestionably give a reasonable evidentiary basis to the trial judge’s conclusion that plaintiff had not begun to exert any pressure to the bottle when it burst and therefore, did not mishandle it. Under Canter, if there exists a reasonable evidentiary basis, this court should not substitute its factual conclusions for those of the trial judge, even though our conclusions are as reasonable.

The majority places much reliance upon the fact that almost all of plaintiff’s witnesses testified that Dugas “was in the process of opening the bottle when it broke.” I do not attach much significance to these statements because I feel Dugas was in the process of opening the bottle from the moment he picked it up and intended to drink it. I doubt if recovery could be denied had the bottle burst in Dugas’ hand while he was in the storeroom before he had obtained the basin wrench; nevertheless, in my opinion, Dugas would have been in the process of opening the bottle at that time. In short, I do not feel that the unqualified and broad statements made by the witnesses referring to being “in the process of opening the bottle” can be construed to mean that Dugas was applying pressure to the bottle when it burst. I think it equally reasonable to construe the statements to mean that Dugas obtained the bottle and was taking preparatory steps to open it. None of the testimony clearly indicated that pressure had actually been applied to the bottle and this is the crucial element. In fact, all of the witnesses stated that they could not see plaintiff clearly at the time of the explosion. The majority has read too much into these statements.

Finally, the majority quotes the following language from the deposition of Rene Pre-jean:

“Q. Were you present when Elwood was hurt?
A. Yes, sir, I was.
Q. What happened?
A. He was in the process of opening a coke bottle with a lavatory wrench.
* * * * * *
Q. How was he using it? Do you know? How was he using it to open the bottle?
A. Well, I think he was holding the bottle in either his right — I don’t remember what hand he was holding the bottle in, but he had the wrench on top and I would imagine he was trying to pull the cap off.
Q. Had he touched the bottle when it broke? Had he touched it with the wrench when it broke?
A. I believe he had, yes.
Q. In other words, it broke while he was in the act of pulling the cap off?
A. Right.
Q. The best you can recall is that he had the looped end of the wrench which is this top part here, hooked over the cap and he was pulling on it?
A. To me that’s how it was done, yes. It happened real quick, you know, I was just looking at him one minute and the next minute he was full of blood.”

In addition to Prejean’s deposition the trial court had the benefit of Prejean’s testimony at trial. It was apparent from his testimony at trial that Prejean was not watching plaintiff closely at the moment of the explosion. Furthermore the deposition, which indicated that plaintiff was actually pulling off the cap when the bottle exploded, is as uncertain as plaintiff’s testimony, which indicated that no pressure was yet applied to pull the cap off. Obviously the trial judge attached more significance to his testimony in court than his deposition. This was within his discretion. Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3rd Cir. 1971).

Having concluded that there was sufficient evidence upon which the conclusion could be reached that plaintiff had not exerted any pressure on the bottle and, therefore, did not mishandle it, I would go on to hold that res ipsa loquitur is applicable to this case.

Defendant argues that res ipsa loquitur should not apply because plaintiff failed to negate all other possible causes of his injury other than defendant’s negligence. Defendant further maintains that the doctrine does not apply where there is direct evidence of negligence which caused the injuries involved on the part of someone other than defendant and where the facts are such that one can reasonably infer that the accident was due to a cause other than defendant’s negligence.

In this regard I quote the language of Justice Tate in the opinion of Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621, 636 (1972):

“[T]he circumstantial evidence requisite in civil negligence cases need not negate all other possible causes of injury, as the opinions of the previous courts seemed to hold. It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it be more probable than not that the harm was caused by the tortious conduct of the defendant. .
In this respect, the principle of ‘res ipsa loquitur’ (the thing speaks for itself) sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible. Pilie v. National Food Stores of Louisiana, 245 La. 276, 158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto. Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L. Rev. 70 (1941); Comment, 25 La.L.Rev. 748 (1965).” [Footnote omitted]

I feel that the circumstantial proof in this ease shows that it was more probable than not that plaintiff’s injuries were caused by the tortious conduct of the defendant. As I have previously stated, the trial judge was not erroneous in finding that plaintiff did not mishandle the bottle in question. It was established at trial that no one other than the defendant or its agent handled the Coca-Colas delivered to Boo Boo’s Lounge. If there was no mishandling of the bottle by plaintiff and no one but the defendant handled the bottle prior to plaintiff’s obtaining it, it follows that there could be no other “as-plausible” explanation for plaintiff’s injuries.

In any event, after reviewing the cases on bottle explosions, I am inclined to follow the long line of decisions which have applied res ipsa loquitur to analogous situations. E. g., Centineo v. Anheuser-Busch, Inc., 276 So.2d 352 (La.App. 4th Cir. 1973); Lafleur v. Coca-Cola Bottling Company of Lake Charles, Inc., 195 So.2d 419 (La.App. 3rd Cir. 1966), writ refused 250 La. 488, 196 So.2d 802 (1967); Naquin v. Baton Rouge Coca-Cola Bottling Company, 182 So.2d 691 (La.App. 1st Cir. 1965), writ refused 248 La. 1100, 184 So.2d 24 (1966); Gabriel v. Royal Products Division of Washington Products, Inc., 159 So.2d 384 (La.App. 4th Cir. 1964); Hudnall v. Travelers Insurance Company, 148 So.2d 840 (La.App. 4th Cir. 1963), writ refused 244 La. 123, 150 So.2d 586 (1963). Plaintiff herein has made out a prima facie case of negligence against the defendant. Defendant sought to rebut this inference of negligence with Doctor Riley, who merely testified as to the general strength of Coca Cola bottles and the various ways that Coca Cola bottles would break. Defendant has failed in his rebuttal.

Having concluded that defendant was liable to plaintiff for his injuries, I would affirm the trial judge’s determination of damages, which defendant argues was excessive.

The trial judge broke down the award as follows:

Doctor’s expenses .$ 291.00
Hospital expenses.$ 493.00
Expenses of depositions .$ 97.00
Future medical expenses.$ 1,500.00
Lost earnings (past).$ 1,750.00
General damages.$ 6,000.00
Total .$10,131.00

Plaintiff had a laceration on the left hand starting at the ulnar side of the little finger and extending to the radial side of the ring finger. Both the deep and superficial tendons of the little finger were cut as well as the tendon sheath of the ring finger. He underwent emergency surgery in which the deep tendon of the little finger was sutured, and the tendon sheath of the ring finger was cut away in order to allow unhampered movement of the tendon of the ring finger.

In addition to the tendon damage, plaintiff now experiences some loss of sensation in both fingers, which indicates some permanent damage to the sensory system. This is substantiated by Doctor Riordan, an orthopedic surgeon, and Doctor Leblanc, a thoracic surgeon. Doctor Riordan stated that plaintiff will have to undergo further surgery, hospitalization, and follow-up treatment. He estimated that this would cost $1,500.00.

Doctor Riordan testified that the loss of sensation in the little finger and ring finger was permanent and would result in a ten percent loss of function of the left hand as a whole. Furthermore, the doctor stated that plaintiff’s little finger could only reach about 70 percent of its normal range of motion. The evidence in the record indicates that plaintiff is now working at his normal occupation. Considering all facets of plaintiff’s award of $6,000.00 for general damages, I find that it is within the limits qf discretion allowable to the trial court. An appellate court should not disturb an award made by a trial court unless it is revealed clearly in the record that the trier of fact abused its discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Considering the award for medical expenses and the expense of depositions, all of which have already been incurred, I find them to be reasonable and supported by bills introduced into evidence.

The award of $1,500.00 for future medical expenses is substantiated by the testimony of Doctor Riordan.

Plaintiff introduced into evidence his income tax returns for the two years preceding the accident. Those returns indicate average annual earnings of approximately $8,500.00 which yield average weekly earnings of approximately $175.00. Since plaintiff lost ten weeks of work the award of $1,750.00 for lost earnings is reasonable.

For the above reasons I would affirm the judgment of the District Court.

Accordingly, I respectfully dissent.

      . There is no issue of inconsistency between the deposition and Prejean’s testimony in court; the former supplements and amplifies the latter.


author: GUIDRY, Judge. WATSON, Judge,

text:
    George BENHAM d/b/a “Four Keys”, Plaintiff-Appellee, v. Frank GUILBEAUX, Defendant-Appellant.
    No. 6244.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Writ Refused May 12, 1978.

      Watson and Foret, JJ., both voted for a rehearing.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, for defendant-appellant.
    Scofield, Bergstedt & Gerard by Benjamin W. Mount, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Plaintiff sues to recover three weeks wages allegedly due under a four week contract of employment.

Plaintiff, Benham, was engaged by defendant, Guilbeaux, owner and operator of a night club known as the “Polynesian Room”, to provide music for the entertainment of his patrons. Under the contract, which was signed by Benham and Guil-beaux, the former was to provide a group of four (4) musicians, including himself. The contract was to run from August 19th through September 13, 1975. The contract provides that the musicians are engaged severally and each may enforce the agreement. The contract further provides for payment to the band weekly of the sum of $1300.00, which sum, according to the terms of the agreement, is to be distributed by the leader, on behalf of the employer, to the musicians, including himself, as indicated on the opposite side of the contract. The opposite side of the contract is not completed. Finally, the agreement provides for an award of 6% contractual interest plus attorney’s fees in the event resort to judicial proceedings is necessary for the enforcement of its provisions.

At the end of the first week Guilbeaux paid to Benham the sum of $1300.00 but then advised Benham that his services and that of the other musicians were no longer needed. This suit followed wherein Ben-ham seeks recovery of all wages due the band for the remaining three weeks, i. e., $3900.00; contractual interest plus attorney’s fees under the agreement; and, penalties and attorney’s fees under LSA-R.S. 23:631.

The trial court concluded that plaintiff was entitled to recover the sum of $2100.00 under the employment contract because Gu-ilbeaux terminated same without just cause; LSA-R.S. 23:631 was not applicable because Benham was not hired by the day, week or month but rather for a specified period, and in any event, he was admittedly paid all wages earned up to the time of his discharge; and, he was entitled to an award of $700.00 as attorney’s fees under the contract.

Defendant appealed. Plaintiff has answered the appeal and seeks an increase in the principal amount of the award as well as an increase in attorney’s fees.

The principal issue on appeal is whether defendant was justified in terminating the employment contract. The trial judge resolved this factual issue adverse to defendant and stated:

“In this case, while there’s some testimony that Mr. Benham has taken excessive breaks, and he drank a lot, really what I find here is simply that Mr. Guilbeaux was dissatisfied with Mr. Benham’s music, because Mr. Guilbeaux’s customers didn’t like the type of music Mr. Benham was playing . . . There has been no showing here that the type of music that the plaintiff played was not quality music. And to say that an owner can get out of a contract simply because he found that the type of music did not satisfy his customers, in this Court’s view is not enough to permit him to breach the contract . . . ”

Appellant suggests that the trial court erred as a matter of law in making this finding and cites in support of such contention the case of Lee v. Blackwell, 286 So.2d 185 (La.App. 4th Cir. 1973). In Lee, the trial court resolved the factual dispute favorable to the proprietor finding that the entertainer whose employment was terminated drank excessively, did not have an adequate repertoire, and treated the patrons with disrespect. We have no quarrel with the holding in Lee but find it clearly inapposite to the facts of this case as found by the trial judge.

LSA-C.C. Article 2749 provides:

“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

The trial court determined that plaintiff’s employment was terminated by defendant without any serious ground of complaint. We will not disturb this conclusion on appeal finding a reasonable basis in the record to support same. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We next consider the amount awarded by the trial court. Plaintiff contends that he paid the other three musicians employed by Defendant for the remaining three weeks of employment and therefore the trial court erred in not awarding him judgment for the full contractual amount, i. e., $3900.00.

There is no evidence in the record indicating that plaintiff actually paid the other three musicians their wages other than his unsupported statement to that effect. The trial court concluded that plaintiff failed to support his demand with proper and sufficient proof. We find no error in this conclusion.

We do find error, however, in the amount awarded Mr. Benham. As afore-stated, the trial court awarded plaintiff judgment for the principal sum of $2100.00 and in doing so assumed, without benefit of any competent evidence, that Benham had agreed to pay the other three musicians $200.00 weekly, and that he was to receive $700.00 weekly. In this connection, the trial court stated:

“But the court has to make some decision in this matter and I will, for purposes of this record, assume that Mr. Benham paid the other three gentlemen Two Hundred Dollars a week each, and in addition paid their expenses, which means that Mr. Benham would be entitled to recover Seven Hundred Dollars per week for a total of three weeks . . . ”

Decisions cannot be based on mere assumption of facts. Bates v. Monzingo, 221 La. 479, 59 So.2d 693.

There is no competent evidence in the record concerning the exact amount each musician, including Benham, was to be paid out of the $1300.00 which the band was to receive weekly. The contract, by its terms, provides that Benham was to distribute the total received weekly to the musicians, including himself, in the amounts indicated on the opposite side of the agreement. The reverse side of the contract was left blank. Under these circumstances, we conclude that each musician was entitled to sue for and recover one-fourth of the amount which defendant agreed to pay the band weekly, i. e., $325.00 per week. Therefore, we will amend the lower court judgment to reduce the principal amount of the award to $975.00.

We find no error in the trial court’s refusal to allow plaintiff penalties and attorney’s fees under LSA-R.S. 23:631 et seq. The cited statute is clearly inapplicable to the instant controversy.

Finally, we conclude that the amount awarded plaintiff as attorney’s fees under the contract is adequate and will reasonably compensate plaintiff’s attorney for services on the trial level as well as on appeal.

For the above and foregoing reasons the judgment of the trial court is amended so as to reduce the principal amount of the award from $2100.00 to $975.00. In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be borne by defendant-appellant.

AMENDED AND AFFIRMED.

WATSON, J., dissents and assigns written reasons.

FORET, J., dissents.

WATSON, Judge,

dissenting:

In considering this appeal it must be constantly remembered that under consideration is a rather unique personal services contract and that the fundamental cause from the employer’s point of view is that the “Four Keys” were engaged “. for the entertainment of Defendant’s patrons”. TR. 3 (plaintiff’s petition).

The primary issue is whether Guilbeaux was justified in terminating the employment of the Four Keys.

The contract of employment between Gu-ilbeaux and the Four Keys provides that the four musicians are Guilbeaux’s employees and states:

“6. The Employer shall at all times have complete supervision, direction and control over the services of musicians on this engagement and expressly reserves the right to control the manner, means and details of the performance of services by the musicians. . . ” (TR. 32).

The contract later adds:

“The leader shall, . . . carry out instructions as to selections and manner of performance.” (TR. 32).

The contract thus provides the right of direction and control by the employer, the primary test for an employment relationship. Florence v. Clinique Laboratories, Inc., 347 So.2d 1232 (La.App. 1 Cir. 1977). The question of employee status is a factual one but the trial court found that there was an employment relationship. (TR. 68). Hudson v. Allstate Insurance Company, 169 So.2d 598 (La.App. 2 Cir. 1964).

The trial court concluded that the type of music played by the Four Keys did not satisfy Guilbeaux’s customers but stated that this was insufficient reason for discharge of the band.

Guilbeaux’s records show gross sales of $1583 during the week that the Four Keys played; gross sales of $2349.55 during the preceding week; and gross sales of $1610.28 during the following week. The band received $1300 a week.

Plaintiff Benham has extensive musical education and experience. Benham said his group was unable to perform “Matilda”, a locally popular song which was requested. Benham was first advised that Guilbeaux was dissatisfied by booking agent Mike Ford, who called him and said Guilbeaux was not happy with the group because business was off. Benham admitted there was a large crowd at the Polynesian Room on only one night of his week there. Guil-beaux advised Benham on August 23 that he could not afford to keep the group any longer. Benham testified that he had borrowed money to pay the other three band members for the remaining three weeks of the engagement but produced no records to substantiate this fact. Benham has no authority or mandate to act as agent to collect any sums due the other band members.

Randy Autry Tyler, a band member, testified in answers to interrogatories that not many people frequented the Polynesian Room during their week’s engagement.

Both Guilbeaux and Rusty Morine, who was employed as a barmaid, testified that the band took excessive breaks and did not play locally popular music. Ms. Morine identified a list of songs which the Four Keys were asked to learn how to play but which they failed and refused to learn or rehearse. She confirmed that regular customers left because they did not care for the music; which was different from that to which they were accustomed. Guilbeaux is now out of the nightclub business and Ms. Morine is employed elsewhere.

The evidence adduced establishes without contradiction that business at the Polynesian was poor during the Four Keys’ engagement.

LSA-C.C. art. 2749 states:

“If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

An employee alleging wrongful discharge under this article bears the burden of proving that his discharge was without just cause. See the discussion at 23 La.L.R. 553 and Blue v. Chandler, 5 So.2d 210 (La.App. 1 Cir. 1941). The trial court erred in placing the burden of proof on defendant Guil-beaux to show cause or justification for terminating the employment agreement. Generally, unsatisfactory services which result in a monetary loss justify an employee’s discharge. Compare Southern Pacific Transport Company v. Doyal, 289 So.2d 882 (La.App. 4 Cir. 1974).

There is little doubt that a band which not only does not draw business into a lounge but drives customers away gives the owner “serious ground of complaint”. The Louisiana law on the point was stated in Georesearch, Inc. v. Morriss, 193 F.Supp. 163 (D.C.La., 1961) affirmed 298 F.2d 442 (U.S. 5 Cir. 1962), to be as follows:

“. . . if a person is not achieving the results for which he was hired, whether it be due to incompetency, inefficiency or some other cause within his control, the employer may discharge him from his employ.” 193 F.Supp. 177.

We agree with this further statement by the court in Georesearch, Inc., supra:

“This rule is entirely consistent with our economic system where competition is the order of the day. If an employer must retain an employee who is inefficient and incompetent adequately to perform the job he was hired to do, the employer would be met with rising overhead expenses so burdensome as completely to stifle his economic growth and competitive ability. Such a rule would place a heavy burden on the employer to conduct a costly, time-consuming investigation on each prospective employee to ascertain his abilities and shortcomings, knowing that if his investigation proved erroneous the employee must be paid in full to the end of the term for which he was employed.” 193 F.Supp. 178.

I would conclude that defendant Guil-beaux was not required to continue the employment of George Benham and the other band members when such employment constituted a financial hardship.

I respectfully dissent.

      . The judgment reads “Twenty-One Thousand and no/100 ($2100.00) Dollars”, but the reasons for judgment indicate $2100.00 is the correct amount. We need not classify the defect as one of form or substance as we amend the judgment as to the principal sum to be awarded.

      . A personal services contract differs from an ordinary contract, for example, in that it is not affirmatively enforceable. If Benham and the other three “Keys” had walked off the job, Guilbeaux could not have forced them by legal action to play. Fletcher v. Rachou, 323 So.2d 163 (La.App. 3 Cir. 1975).

      . This finding brings the instant case under the rule expressed in Lee v. Blackwell, 286 So.2d 185 (La.App. 4 Cir. 1973). The difference is only in degree.