author: GARRISON, Judge.

text:
    Anna A. ADAMS v. Stanley C. SCONZA, Jr., and Ernest Bauer d/b/a Fireball Moving Service.
    No. 10432.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 1980.
    Ernest L. Bauer, d/b/a Fireball Moving Service, pro se.
    John J. McGuckin, Jr., Gretna, for plaintiff-appellee.
    Before BOUTALL, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

Plaintiff sued defendants Sconza and Bauer for injuries and property damage received when a moving van owned by Bauer and being operated by Sconza struck her small car. The trial court awarded her judgment against the defendants in the amount of $2,405.34 plus interest and costs. Only Bauer has appealed. We affirm.

As far as can be ascertained from appellant’s pro se brief and argument on appeal, the issues are (1) Whether the $905.00 check that Bauer gave to plaintiff on June 14, 1974 amounted to an accord and satisfaction of her claim; (2) Whether the record supports the trial judge’s finding that plaintiff’s injuries extended beyond June 14, 1974.

In his written reasons for judgment, the trial judge concluded that the $905.00 paid by Bauer to plaintiff prior to her institution to this lawsuit was not an accord and satisfaction because “there does not appear to be a mutual intent to obliterate the claim On the contrary, plaintiff has gone to some pains to limit the check by deleting certain words and adding certain words to the front of the check prior to endorsement by her.”

We do not agree with the trial judge’s reasoning that plaintiff’s deletion of certain words and addition of others to Bauer’s check necessarily indicated lack of accord and satisfaction. See Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir. 1975). We agree with his conclusion, however. The evidence in the record simply does not show that plaintiff agreed or understood at the time the $905.00 check was issued that this would constitute full and complete settlement for her damages. Nowhere in the record does plaintiff testify so; the only statements supporting this contention are Bauer’s own remarks (made while he was cross-examining plaintiff). One element necessary to prove accord and satisfaction is a showing that the creditor understands the payment is tendered in full settlement. Eppling v. Jon-T Chemicals, Inc., 363 So.2d 1263 (La.App. 4th Cir. 1978). Although the payee’s action- here strongly suggests she was aware of the nature of the tender, Bauer’s notation on the check did not make it clear so .that “any reasonable reader would fully understand the check was tendered in full payment of all claims.” 363 So.2d at 1266. There is no real proof that Adams, at least, understood this.

Further, the extent of plaintiff’s injuries was borne out by testimony of Dr. Ray Haddad. Dr. Haddad noted that plaintiff had come to him complaining of low-back and chest pains and weaknesses in the right leg. He concluded she had sustained a contusion in her chest and probably had a lumbar cervical sprain. He prescribed a combination pain medication and muscle relaxant. His prognosis was that the tenderness of the chest wall would resolve itself in a few weeks, while the lumbar sprain was probably the aggravation of a previous back problem. The low back and right leg discomfort basically stemmed from a muscle sprain. Considering this testimony, we cannot say the trial judge was clearly wrong in finding that plaintiff’s injuries consisted in soft tissue injuries and bruising of the rib cage and that she made “an uneventful recovery within a few months.”

Although quantum has not been appealed, we note that the trial judge awarded $1,310.74 in special damages, comprised of $272.60 for medical expenses, $100.00 for lost wages, and $938.14 for automobile repairs. He stated he was reducing by one-half the claimed sum of $391.50 for automobile rental, because the need to rent a vehicle was extended through the fault of the plaintiff’s repair service rather than defendant’s fault. The trial judge further noted that he ordinarily would have awarded $4,000.00 in general damages for plaintiff’s pain and suffering, but because “defendants have exhibited an inability to respond to damages to any great degree,” he reduced this amount to $2,000.00. In addition, he credited defendants with the $905.00 paid by Mr. Bauer on June 14,1974. Finally, the award for expert witnesses fees was also reduced by half due to defendants’ financial condition.

Considering the foregoing, we find no error in the judgment of the district court and, accordingly, it is affirmed.

AFFIRMED.

      . When issued by Bauer, the following words appeared in the lower left-hand corner: “Damages and Injury Caused During Automobile Acc. On 5/May 74.” Adams changed that to “Car Damage and Medical Expenses Caused During Automobile Accident on 5/May 74.”


source: Caselaw Access Project

license: Public Domain

text:
    Wilbert L. ROTH v. B & L ENTERPRISES, INC., and F. Robert Porter.
    No. 10587.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 1980.
    Garland R. Rolling, Metairie, for plaintiff-appellant.
    Gordan K. Konrad, Metairie, for defendants-appellees.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment which maintained defendant B & L Enterprises’ exception of no cause of action and dismissed plaintiff’s suit for failure to amend his petition to disclose a cause of action. We reverse and remand.

Wilbert Roth purchased immovable property from B & L Enterprises for $12,000.00 on January 25, 1977. The act of sale was passed before F. Robert Porter, notary. The $12,000.00 check was made out to the notary, with the understanding that he would pay any existing liens and then give the rest of the money to the seller, B & L. Apparently, B & L got its share of the money, but Porter failed to pay the outstanding liens, which totalled $5,239.50. Plaintiff Roth ultimately had to pay these liens, and sued B & L and Porter seeking return of that amount from them. B & L filed an exception of no cause of action. The trial court maintained the exception and gave plaintiff ten days to amend his petition to state a cause of action. In default of such an amendment, the petition was dismissed with prejudice, and Roth appeals.

Because Porter was never served with the lawsuit, the only defendant before this court is B & L. It is clear from the petition that plaintiff has a cause of action against Porter, but the question before us is whether he also has a cause of action against B & L. Considering, as we must, only the well-pleaded allegations of fact in the petition and the documents attached thereto, we conclude that plaintiff’s petition does state a cause of action against B & L Enterprises.

The pertinent portions of plaintiff’s petition are as follows:

“(3) Upon information and belief, plaintiff alleges that defendant Porter was engaged by defendant B & L Enterprises to pay off any existing liens against the property sold to plaintiff.
“(4) On the date of the act of sale, plaintiff tendered to defendant Porter a check in the amount of $12,000, payable to the said defendant Porter, with the understanding that the sum due on the liens would be paid by defendant Porter, with the balance of the purchase price to be turned over to defendant B & L Enterprises, Inc. A copy of the check is attached: ‘P-2’.
“(5) Since the purchase, plaintiff has been notified that the liens were not paid, and plaintiff has now become obligated for their payment, in the amount of FIVE THOUSAND TWO HUNDRED THIRTY-NINE AND 50/100 DOLLARS ($5,239.50).
“(6) Plaintiff now seeks the return of the amount due on the liens from the defendants, under the warranty contained in the act of sale.”

We agree with plaintiff that these allegations state a cause of action for a principal’s liability for the acts of its agent. Further, reading the petition in conjunction with the copy of the act of sale attached thereto, plaintiff has stated a cause of action under the vendor’s implied warranty to deliver title free of encumbrances. See Hingle Bros., Inc. v. Bonura, 248 So.2d 391 (La.App. 4th, 1971).

For the reasons above, therefore, we reverse the judgment of the district court, and remand the case for further proceedings in due course.

REVERSED AND REMANDED.


author: SAMUEL, Judge.

text:
    Emile F. LE ROUGE v. NEW ORLEANS PUBLIC SERVICE, INC., Norco Construction Company, Inc., and Middle South Utilities, Inc.
    No. 10301.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      Thomas L. Giraud, Salvador M. Cusima-no, and Charles A. Verderame, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr., and R. Patrick Vance, New Orleans, for New Orleans Public Service, Inc., defendant-appellee.
    Don Almerico, Norco, for Norco Constr. Co., defendant-appellee.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff instituted this suit for pension benefits against three alleged employers, New Orleans Public Service, Inc. (NOPSI), Norco Construction Company, Inc., and Middle South Utilities, Inc. Middle South was dismissed on a motion for summary judgment (from which no appeal was taken and which is now final) and the matter was tried on the merits as to the other two defendants. Following trial, judgment was rendered dismissing plaintiff’s suit.

Plaintiff has appealed. In this court he only contends the trial court erred in not finding him an employee of NOPSI.

The following facts are uncontested. From 1935 until May 26, 1945, following his advancement to supervisory status, plaintiff was employed by NOPSI in the gas department. During that time he was a participating member of the NOPSI retirement program. He then resigned to enter another business, withdrew his pension contributions, and thereafter made no further pension contributions. From 1945 to 1951 he was a self-employed building contractor.

In connection with its obligation to render gas services, at one time NOPSI gas department had laborers on their own payroll. However, for economic reasons, the company decided to hire laborers on an “as needed” basis and engaged Norco Construction Company, a corporation specializing in providing day laborers to various corporations, to provide them with persons capable of doing general laboring work. In 1951 Norco, which had a cost plus contract with NOPSI to provide these services since mid 1940, was in need of a new'man to manage its New Orleans business (at this time consisting solely of NOPSI ) and the NOPSI general manager recommended plaintiff for that position.

Norco engaged plaintiff under an oral contract whereby he was to supply all needed gas crewmen. NOPSI set the rate it was willing to pay the laborers which Norco provided and wás in turn billed by Norco on a cost plus basis. Plaintiff was paid on a commission basis by Norco, receiving 40% of the billings, with Norco retaining 60%.

The laborers supplied by Norco worked under the direction of NOPSI supervisors, who kept records as to the days and hours each man worked, turning the weekly records over to plaintiff who, each Wednesday, took this information to Norco where the employees’ payroll checks were made. Plaintiff distributed the Norco checks to the laborers on each Friday.

From 1951, when he was engaged by Norco, until January 1, 1976, when he retired, plaintiff was paid by checks from Norco. He paid his own social security taxes, provided his own automobile, made no pension plan payments to either Norco or NOPSI, and considered himself self-employed for income tax purposes.

It appears from the record that up to one year prior to plaintiff’s retirement, the NOPSI pension plan required contributing payments by its employees who chose to be members of the plan. However, in 1975 the plan was changed and members were not required to contribute to the cost of their pensions. Since his withdrawal from the plan in 1946, plaintiff made no effort to reactivate any pension rights he may have had with NOPSI under the contributory plan, nor was he a contributing member of any Norco retirement plan.

It is plaintiff’s position that: (1) Because the new NOPSI non-contributory retirement plan went into effect prior to his retirement from Norco as a result of having reached retirement age, he is entitled to pension benefits for the period from 1951 to January 1,1976; and, alternatively, (2) he is entitled to a pension under the Federal Employee Retirement Income Security Act.

Relative to his first contention, plaintiff argues he was an employee of NOPSI even though all of his pay was received from Norco because he was “indirectly hired” by NOPSI through its general manager’s recommendation; NOPSI provided him with a telephone and a desk where he reported daily, and all of the work done by him was for the benefit of, and supervised by, NOP-SI.

Plaintiff testified he employed laborers wherever he could find them, did some typing at his home starting from there at 7 a. m. each day, and was in the field four days per week, going to Norco on Wednesday. He received instructions from NOPSI as to the number of men required. If NOPSI was dissatisfied with a laborer he was asked not to rehire him. NOPSI supervisors did not have to accept any laborer he sent them, and he did not supervise the laborers, he only hired them. Plaintiff conceded he never received a pay check from NOPSI subsequent to 1951, nor any benefits to which NOPSI employees were entitled, such as vacation with pay and paid holidays.

The trial court found that “plaintiff was either self-employed or a Norco Construction Company employee. He was not an employee of New Orleans Public Service Inc.” The record fully supports that conclusion.

Relative to plaintiff’s second contention, that he is entitled to a pension under the provisions of the Federal Employee Retirement Income Security Act (29 U.S. C.A. § 1003) which became effective January 1, 1975 and which supercedes state laws on the subject, he argues he is an employee of NOPSI as defined in that federal act as follows:

29 U.S.C.A. Sec. 1002(6) “The term ‘employee’ means an individual employed by an employer.”

and Code of Federal Regulations Title 29, Section 788.16(a), which provides:

“The Supreme Court has made it clear that there is no single rule or test for determining whether an individual is an employee or an independent contractor but that the ‘total situation controls’

No federal law to which we have been cited, and we know of none, requires a corporation to provide pension benefits to a person who is not an employee of that corporation, and in carefully examining the total situation of plaintiff relative to his duties from 1951 to 1976 we cannot conclude that he was an employee of New Orleans Public Service, Inc., and thus entitled to pension benefits from that corporation.

For the reasons assigned, the judgment appealed from is affirmed.

a AFFIRMED.

      . Later Louisiana Gas Service, Inc., another independent subsidiary of Middle South Utilities, was an added customer from 1953 to 1963.

      . The benefits which plaintiff seeks are:
      1) $465 per month; 2) medical insurance benefits of $54 per month; 3) a $9,000 paid-up life insurance policy with the right to purchase coverage up to $30,000 for a premium of $0.63 per month per thousand; 4) reasonable attorney’s fees.


text:
    Anna M. BROWN v. Thomas M. LOCKWOOD, the Administrator for the Louisiana Department of Employment Security and U. Koen & Company.
    No. 10346.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Edward A. Armstrong, Jr., New Orleans, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, for defendant-appellee.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Anna M. Brown appeals from a district court judgment upholding an administrative determination that she was disqualified from receiving unemployment compensation benefits.

Appellant had been involved in a fight on her employer’s premises with two other women, a fellow employee and a daughter of that employee. She was discharged and applied to the Louisiana Department of Employment Security for unemployment compensation benefits.

The Department of Employment Security determined appellant had been discharged for misconduct connected with her employment, and for that reason denied her application. She appealed to the Appeals Tribunal which, following a hearing, upheld the initial determination. This decision in turn was appealed to the Louisiana Board of Review, which also affirmed the initial determination. Appellant then appealed to the Civil District Court for the Parish of Orleans, which also affirmed.

In pertinent part, Revised Statute 23:1601 provides:

“An individual shall be disqualified for benefits:
(2) If the Administrator finds that he has been discharged for misconduct connected with his employment.”

Within the meaning of R.S. 23:1601(2), “misconduct” has been defined as an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has a right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design or show an intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations to the employer.

The jurisprudence uniformly has adopted the rule that the Employment Security Act should be liberally construed in favor of the employee, and there is at least one decision which stands for the proposition that engaging in a fight with another employee, standing alone, does not constitute such misconduct as would disqualify a discharged employee from receiving unemployment compensation benefits.

In proceedings under the statute, “the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” The facts as found by the administrative tribunal, which we accept, are:

Appellant had worked for her employer for three years as a maid. She was discharged because of the incident in suit. During that morning she was at work in her employer’s recreation room. Another woman, not an employee but whose mother was an employee, was the only other person in the room at that time. Quoting from the administrative Findings of Fact: “This woman shook her finger in the claimant’s face, and told the claimant not to curse at her mother. The woman then slapped the claimant in the face. The claimant hit her back. At this time, the claimant’s assailant’s mother reentered the recreation room and told the claimant not to hit her daughter. The two women cornered the claimant near a soft drink machine. The claimant picked up a root beer bottle with which to defend herself. She broke this bottle against the wall during the melee, and continued to fight with it. At the conclusion of the disturbance, the claimant had cut each of her assailants on the head, she had slashed the right forearm of the younger assailant who had slapped her first, and has gashed her own left arm in the scuffle.”

In pertinent part, the Opinion of the Appeals Referee states that in “the course of defending herself against the combined attack of two assailants, the claimant freely acknowledged that she picked up and broke a glass bottle” with which she did bodily harm to her assailants. The Opinion further states the appellant did not instigate the fight.

We reverse. Here, there was no disregard of her employer’s interest, no violation of its rules, and none of the factors mentioned above and contained in the cases cited in note 1. While those mentioned factors are not necessarily exclusive, this appellant only defended herself from an attack by two other women.

We do not say her employer improperly terminated appellant’s employment. Nor do we hold engaging in a fight under any circumstances does not constitute misconduct connected with one’s employment. However, under the facts of this case, we do hold appellant was not guilty of misconduct connected with her employment within the meaning of R.S. 23:1601(2).

For the reasons assigned, the judgment appealed from is reversed and the Administrator of the Louisiana Department of Employment Security is ordered to pay appellant, Anna M. Brown, all benefits to which she is entitled in this matter.

REVERSED.

      . Landry v. Department of Employment Security, La.App., 272 So.2d 792; Payne v. Antoine’s Restaurant, La.App., 217 So.2d 514; Gatlin v. Brown, La.App., 154 So.2d 224; Wilson v. Brown, La.App., 147 So.2d 27.

      . See National Gyp. Co. v. Administrator, La. Dept. Emp. Sec., La.App., 300 So.2d 527; Senegal v. Lake Charles Stevedores, La.App., 188 So.2d 510.

      . See Henton v. Brown, La.App., 157 So.2d 238.

      . R.S. 23:1634.


text:
    Eli FLEMING v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Budget Rent-A-Car and James Caporale.
    No. 10424.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Manard, Schoenberger & Ryan, Robert L. Manard, III, New Orleans, for plaintiff-ap-pellee.
    Adams & Reese, Robert E. Couhig, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for personal injuries, medical expenses and property damages resulting from an automobile accident. The matter was tried to a jury and judgment was rendered in favor of plaintiff in the sum of $27,691. The defendant-insurer has stipulated liability, and on appeal contends only that the award for personal injuries is excessive.

Lay evidence relative to plaintiff’s injuries was given by plaintiff and his wife. The medical evidence was given by Dr. Em-met Guilliott, the original treating physician, and Dr. Kenneth Vogel, a treating neurosurgeon. The only other witness was the investigating police officer whose only testimony relative to the quantum issue before us was that upon his arrival at the scene of the accident he observed the heavy amount of damage to both vehicles and that the plaintiff was bleeding profusely from the facial area.

The lay testimony (other than the police officer) is to the following effect: The accident occurred on June 14, 1976 when the plaintiff vehicle was struck at the left front door with such force the vehicle was totally demolished. Plaintiff hit his head on the steering wheel, cracking the wheel. He bled profusely, and was taken from the scene by ambulance to Charity Hospital where four stitches were taken in his head. He also injured his leg, back and neck. He was treated by Dr. Guilliott for about one month and then, when he did not improve, by Dr. Vogel. His neck and back problems improved, but his head continues to give him problems. After the accident he could not work because of the pain in his head. Plaintiff is 43 years old, attended school until fourth grade, did construction work, farm labor, and worked for a garbage disposal firm at the time of the accident. He was involved in another accident in November, 1976, but his head was not injured. Since the accident plaintiff has become forgetful, has dizzy spells and headaches, poor memory and is easily irritated. He is no longer able to engage in construction work, nor is he able to pick up and play with his children.

The medical evidence is as follows:

Dr. Guilliott testified: He saw plaintiff shortly after the accident, taking a medical history and performing a routine physical examination. His initial findings included a laceration of the forehead, abrasion of the left knee, marked right trapesius spasm and tenderness, marked paralumbar spasm of the low back and evidence from the straight leg raising test to indicate that the sciatic nerve was possibly stretched or herniated. He treated plaintiff on eight occasions until July 13, 1976 and recommended continued diathermy treatments. A neurologist was recommended because of plaintiff’s continued complaints of headaches.

Dr. Vogel testified: He saw plaintiff July 13, 1976 for evaluation of headaches. The history taken indicated plaintiff was in good health prior to this accident, but since striking his head on the steering wheel he has had continued headaches and insomnia. Neurological examination revealed mild muscle spasm of the cervical spine on the right, with mild loss of motion and mild limitation of motion in the lower extremities, and soreness in that area, with no spasms. Dr. Vogel diagnosed plaintiff’s injuries resulting from the accident as a grade 1 concussion, cervical and lumbar strain and laceration of the right forehead, which had healed, but was still visible. He concluded the frontal headaches and mild insomnia resulted from the concussion, and found that plaintiff had a bruise of the brain without permanent loss of function. Other injuries included acute (i. e. of recent origin) cervical and lumbosacral strain. X-rays of the skull were taken, an EEG performed and three weeks of physical therapy was recommended. The EEG was abnormal in the left temporal region, suggesting mild dysfunction compatible with head injury. When seen August 26, plaintiff continued to complain of headaches, dizziness and confusion, and mild pain in the neck and low back. A second EEG was performed, which showed evidence of healing. Plaintiff received 35 physical therapy treatments between July 23 and October 20, 1976. He was seen by the doctor on September 23 and November 2, 1976 and for the last time on September 14, 1978. At that time he still complained of occasional headaches and poor memory. Dr. Vogel stated that after a head injury normal symptomalogy usually lasts from three to six months. However, in a very small percent of cases (2%) they continue beyond that time. While this is uncommon, if the symptoms continue without any intervening head injury it is logical to conclude they result from the original injury.

QUANTUM

Having carefully read the record, we turn our attention to the primary question before our appellate court which is whether or not the judge or jury fixing the amount of the award has abused the great discretion vested in them by law.

As stated by our Supreme Court in Reck v. Stevens:

. . before a Court of Appeal can disturb an award . . . the record must clearly reveal that the trier of fact abused its discretion . . .

If, as contended by appellant, plaintiff’s injuries lasted only four months, then the award would appear to be clearly excessive. However, in view of Dr. Vogel’s testimony, the jury apparently agreed that the continued dizziness and headaches, suffered by plaintiff for two years after the accident, resulted from the accident, and they could have believed, as testified by plaintiff and his wife, that it has adversely affected his ability to work. Thus, we cannot say that the triers of fact abused their very great discretion, and we will not disturb their award.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . $1,631 medical expense and damage to car, and $26,060 for pain and suffering.

      . C.C. Art. 1934(3); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149; Coco v. Winston Industries, Inc., La., 341 So.2d 322; Reck v. Stevens, La., 373 So.2d 498.

      . Supra, note 2.


author: GULOTTA, Judge.

text:
    A. K. ROY, INC. v. Andrew L. ROY.
    No. 10705.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      Gordon K. Konrad, Metairie, for plaintiff/appellee.
    Pilie & Pilie, M. Arnaud Pilie, New Orleans, for defendant/appellant.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   GULOTTA, Judge.

A. K. Roy, Inc., a real estate brokerage firm, sued Andrew L. Roy to recover commissions allegedly due for the sale of defendant’s property. Plaintiff claimed it was the procuring cause for the sale of four groups of lots located on Grand Isle, Louisiana, and sought a total of $8,800.00 in commissions, plus attorney’s fees. The trial court concluded plaintiff was entitled to $3,800.00, including a $200.00 outstanding balance on commission owed from the September 12,1975 sale of three lots (designated here as lots A, B and C), and $3,600.00 commission for the January 12, 1976 sale of three other lots (designated here as lots D, E and F.)

By a separate judgment, the court awarded plaintiff $950.00 in attorney’s fees. Plaintiff has not appealed the court’s dismissal of his claim for $5,000.00 commission on the July 1 and October 1, 1976 sales of other lots. Defendant has appealed both the award of the $3,800.00 commission and, alternatively, the dismissal of his reconven-tional demand that he is entitled to divide the commission with plaintiff. We affirm.

Under the doctrine of procuring cause, a broker is entitled to a commission where the negotiations, which eventually lead to the sale of the property, result from some active effort by the broker. Meyers v. Davidson, 196 So.2d 546 (La.App. 4th Cir. 1967), writ refused 250 La. 746, 199 So.2d 182. There must, however, be some contract of employment, expressed or implied, between the broker and the party from whom the commission is sought. Taylor v. Martin, 109 La. 137, 33 So. 112 (La.1902). See Veters v. Krushevski, 100 So.2d 93 (La.App. 4th Cir. 1958), writ denied, April 21, 1958.

Although the trial judge made no express finding regarding a listing agreement between plaintiff and defendant, considering the evidence presented, such a finding is implicit in the determination that plaintiff is entitled to recovery under the doctrine of procuring cause.

Plaintiff is a real estate brokerage corporation whose president, Folse Roy, is the father of defendant Andrew Roy. Defendant, formerly a vice president of A. K. Roy, Inc., left the company’s employ several years before the transactions involved here, and went into business for himself. He set up his own licensed real estate brokerage, Andrew Development Corporation, although he testified at trial that he generally sells only his own property, seldom making sales for a third party.

Andrew owned several pieces of property in Grand Isle. Folse Roy testified that in late 1974 or early 1975, he had several discussions with Andrew about offering some of Andrew’s property for sale. As a result, Folse said, he agreed to clear, fill, and re-subdivide Andrew’s property, to draw up the ordinances regarding resubdivision, to advertise the property in local and out of town newspapers, to put up signs and to do everything generally necessary to obtain the best price for the property. Folse said that it was agreed that, to reimburse him for his out of pocket expenses in performing these services, he would receive a fifteen percent commission on sales. To prove that the work had been done, plaintiff presented testimony of the contractors who had cleared, filled and graded the land, and introduced into evidence bills and letters regarding labor costs, resubdivision, etc. It is undisputed that plaintiff received a fifteen percent commission on the first sale, i. e., the sale of lots A, B and C.

Andrew, on the other hand, denied that he ever discussed improving the land with his father and claimed to be unaware that much of the improvement work had been done. He said he wasn’t even aware of the resubdivision of the lots until he received a carbon copy of the letter to the Grand Isle Authority requesting resubdivision. (The letter was written in Andrew’s name, but Andrew claimed that his father wrote it without asking him.) Andrew’s copy, filed into evidence, contains a blind P.S. from “dad” to Andrew. Folse, however, said at trial he did not remember writing the letter, but that if he had, it was done with Andrew’s permission.

In sum, the evidence on the listing agreement is reduced to a question of credibility — either the trial judge believed Folse Roy, or he believe Andrew. It is clear he believed Folse and we can find no manifest error in that conclusion.

Even if Andrew was unaware of his father’s efforts to improve his land at the time the improvements were made, he expressed no protest and never attempted to prevent Folse from taking further steps to handle his property. We conclude Andrew’s silence and inaction, from which his consent to an agreement is implied, afford “convincing and even conclusive evidence of such consent.” Glazer v. Abroms, 202 So.2d 290 (La.App. 4th Cir. 1967), writ refused, 203 So.2d 290.

Furthermore, there is no real dispute that plaintiff was the primary moving force in the subsequent sales of Andrew’s property (lots D, E and F) to Lee Vaccari. Andrew admitted that he had nó contact with Vaccari until the sale of lots A, B and C was consummated on September 12,1975.

Subsequent to the sale of lots A, B and C for which plaintiff received a fifteen percent commission, Folse contacted Andrew regarding resubdivision of the remainder of his property and particularly relative to the sale of lots D, E and F to Vaccari. Folse drew up, and Vaccari signed, an agreement to purchase the lots for $36,000.00. The agreement provided for a $3,800.00 commission to be paid to A. K. Roy, Inc. (including, as explained earlier, $200.00 still owed on commission on the first sale.) Folse forwarded the agreement to Andrew, who signed it but changed the commission provision to $2,000.00 to A. K. Roy, Inc. and $1,800.00 to Andrew Development Corporation, Andrew’s own brokerage company. Folse responded in an October 22, 1975 letter to Andrew in which he stated that the commission charge was contrary to their agreement, and accordingly that “there was no contract or agreement outstanding by and between Mr. Vaccari, my firm, and/or yourself.” Folse demanded the $3,800.00 commission be paid to him.

Andrew later resumed negotiations with Vaccari on his own, and on January 12,1976 sold Vaccari lots D, E and F. In July and October 1976, he sold Vaccari four additional lots. It is on these sales that plaintiff claims commission.

Andrew claims that plaintiff’s letter putting to an end the agreement between them indicates plaintiff is not entitled to a commission on the subsequent sales. It is clear from the terms of the letter, however, that plaintiff simply contemplated the letter as applying to any future sales. In the letter, Folse demanded he be paid a commission for finding a willing buyer for lots D, E and F. It is clear the letter was intended to apply only prospectively. This is how the trial judge construed the letter, and it was on this basis he found plaintiff was entitled to the $3,800.00 commission, while denying commission on the latter two sales. We agree with the trial judge.

Finally, we do not agree with defendant’s contention that he is entitled to divide the $3,600.00 commission with plaintiff. Although there was testimony that it is not uncommon for a broker to divide a commission with another broker even where the second broker is also the seller of the property, such fee splitting is dependent upon prior agreement between the parties. Because we find no evidence in the record supporting an agreement for a split commission, we conclude, as apparently the trial judge did, that there existed no such agreement. Furthermore, the fact that plaintiff received a full fifteen percent commission for the sale of lots A, B and C is indicative that there existed no agreement for a split of the commission on the sale of lots D, E and F.

We conclude, therefore, that Andrew’s change in the offer to purchase was clearly unauthorized and was done without any prior discussion with Folse, and well after all negotiations leading up to the sale had already been completed by plaintiff. Accordingly, we hold plaintiff is entitled to earn the entire commission on that sale.

Having so concluded, we affirm the judgment of the trial.

AFFIRMED.

      . According to Folse he and Andrew agreed that Folse would receive a ten percent commission on the sale of lots D, E and F.


text:
    Kenneth R. DICE and Salvador Macaluso v. ALLSTATE INSURANCE COMPANY.
    No. 10714.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Marilyn A. Boothe, New Orleans, for plaintiffs-appellants.

      Murphy & Simon, David T. Bowman, James M. Colomb, III, New Orleans, for defendant-appellee.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   GULOTTA, Judge.

The jury in this case awarded to each plaintiff $370.00, the amount of the medical expenses incurred in connection with treatment received for injuries sustained in an automobile accident. Plaintiffs appealing, contend that the jury abused its discretion by failure to award, in addition to the medical expenses incurred, damages for pain and suffering and loss of earnings. Defendant, on the other hand, in answer to the appeal, claims the jury erred when it rendered judgment in favor of plaintiffs and alternatively contends the awards are excessive.

Kenneth Dice and Salvador Macaluso, two New Orleans Police Department officers, were traveling on duty in a police car at about 10:50 p. m. on November 13, 1976 in a westerly direction on General DeGaulle Avenue in New Orleans. DeGaulle is a four-lane traffic roadway separated by a narrow neutral ground. William H. Nun-gesser, seventeen years of age at the time, was entering the west-bound General DeG-aulle artery from a Mississippi River Bridge exit. While attempting to execute a left turn on an angle, at or near the neutral ground, his car was struck on the left rear bumper by the police car’s right rear bumper.

Plaintiffs’ version and Nungesser’s version of the events immediately preceding the impact materially differ. According to Dice, who was driving the police vehicle, and Macaluso, the passenger, Nungesser disobeyed the exit’s yield sign and failed to yield to the DeGaulle traffic while exiting. They claim the Nungesser car came from the exit directly into their lane of traffic. Dice applied his brakes, slid, hit the curb, and then struck the left rear of Nungesser’s automobile. They testified also that Nun-gesser was moving across the left westerly traffic lane headed toward the neutral ground at the time of impact. Robert Juge, a tow-truck operator for the City of New Orleans, who was following the Nungesser vehicle on the exit, generally corroborated plaintiffs’ version of the accident. Other plaintiffs’ witnesses also corroborated either that the Nungesser automobile did not stop at the yield sign or that plaintiffs’ vehicle was not traveling in excess of the speed limit.

Nungesser’s version was that he stopped at the yield sign, looked for traffic traveling in a westerly direction on DeGaulle, then proceeded at a slight angle to the right and then to the left across the right and part of the left westerly traffic lane into the neutral ground. He said he halted, waiting for traffic to clear the easterly DeGaulle traffic lane, and had been stopped several seconds when the right front bumper of the police car struck the left rear bumper of his automobile. Nungesser’s testimony was corroborated by a passenger in his car, as well as by Dennis Lore, who was also driving down the exit ramp behind the Nungesser car, and by a passenger in Lore’s automobile.

Considering the parties’ contentions in reverse order, we find no merit to either of defendant’s claims.

In answer to interrogatories, the jury concluded Nungesser was guilty of negligence which was the proximate cause of the accident. Because this finding is based upon credibility determinations, we cannot say the jury erred when it accepted plaintiffs’ version of the accident.

We reject also defendant’s claim that the jury erroneously awarded $370.00 each to the plaintiffs for medical expenses incurred. Dice’s treating physician testified that his bill for medical treatment amounted to $215.00, and a radiologist’s bill for x-rays amounted to $155.00. This amount totals $370.00. Macaluso’s treating physician testified that the total amount of his bill was $370.00.

We find merit to plaintiffs’ contention that the award was inadequate. In Mora v. American Motors Leasing Corp., 364 So.2d 1343 (La.App. 4th Cir. 1978), a jury awarded to plaintiffs the exact amounts of the property damage and medical bills incurred. We increased the award, concluding that the jury “may not refuse general damages to plaintiffs with objective injuries.” . The plaintiffs in the case now before us offered medical evidence of objective findings of injury. Under these circumstances we conclude, as we did in the Mora case, that plaintiffs are entitled to an award for personal injuries in addition to the medical expenses awarded by the jury.

Macaluso was seen by Dr. Charles J. Gan-ucheau on November 16, 1976. He complained of pain in the lumbar spinal area. Examination showed spasm in the area of the lower one-third of the spine on both sides. Dr. Ganucheau diagnosed this objective finding as “an acute traumatic thoracic lumbosacral strain.” Physiotherapy, consisting of ultrasound and electrical muscle stimulation in the involved area, was administered on sixteen occasions between November 1976 and January 18, 1977. No pain medication was prescribed. At Dr. Ganucheau’s final examination of him on February 25, 1977, Macaluso exhibited no pain or significant palpable spasms. According to the doctor, when discharged on February 25, 1977, Macaluso had recovered from the injuries sustained.

Kenneth Dice was seen on November 17, 1976 by Dr. Julius Levy, a general surgeon. This twenty-six year old police officer complained of neck pain, making turning of the head and sleeping difficult. He also complained of pain in the left shoulder. Dice’s injury was diagnosed as a cervical strain. Muscle relaxants and Darvon, a rion-narcotic painkiller, were prescribed. Physical therapy and heat treatment were administered on ten occasions between November 22, 1976' and January 27, 1977. He was discharged on February 24, 1977. At the time of discharge he had completely recovered from the accident. According to Dr. Levy, Dice was asymptomatic on January 27th. His neck was not hurting any longer; however, he did exhibit some pain in his left shoulder. Dr. Martin B. Flann, the radiologist who examined and took x-rays in the area of Dice’s complaints, corroborated evidence of muscle spasm.

Although both plaintiffs missed approximately one week of work, Dr. Ganu-cheau indicated that he could find no notation in his records that Macaluso was told not to go to work. Dr. Levy testified that he did not advise Dice not to return to work. Furthermore, the evidence does not show how much wages plaintiffs lost because of their absence from the job. Under those circumstances, we must hold that they are not entitled to an award for loss of wages.

We conclude further that plaintiffs are entitled to an increase of the award for personal injuries over and above the medical expenses awarded. In determining the amount of these awards, we follow the guidelines of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976):

“[Bjefore a Court of Appeal can disturb an award made by a trial court . the record must clearly reveal that the trier of fact abused its discretion in making its award. [Citations omitted.] Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. [Citations omitted.]” 341 So.2d at 335.

See also Reck v. Stevens, 373 So.2d 498 (La.1979). As noted above, the jury here abused its discretion in failing to award general damages to these plaintiffs, who had objective injuries. On this basis, therefore, we amend the judgment to award Kenneth Dice $750.00 and Salvador Macalu-so $500.00 in general damages, the lowest amounts reasonably within the jury’s discretion. These amounts are in addition to the medical expense awards as determined by the jury.

As amended, we affirm the judgment of the trial court.

AMENDED AND AFFIRMED.

      . We distinguish Hood v. State Farm Mut. Auto. Ins. Co., 376 So.2d 328 (La.App. 4th Cir. 1979), in which we held that the jury’s award of the exact amount of medical expenses did not constitute an abuse of discretion. In the Hood case, however, there was no objective evidence of injury and the jury was presented with the issue of exaggeration and overtreatment of plaintiffs’ injuries. Here, there were objective findings and no question of overtreatment was presented to the jury.


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    Ronald E. MILLER and Mrs. Felice M. Miller v. Valentine A. LAMBERT, Warren Galliano, Lattie Development Co., Inc., Lattie Construction Co., Employers’ Fire Insurance Co.
    No. 10743.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.

      John H. Brooks, Gretna, for plaintiffs-ap-pellees-appellants.
    Leach, Paysse & Baldwin, Richard C. Baldwin, New Orleans, for George Hoffman d/b/a Hoffman Elec. Co., defendant-appel-lee.
    Drury & Lozes, James H. Drury, New Orleans, for defendants-appellants-appel-lees (Valentine A. Lambert, Warren Galli-ano, Lattie Development Co., Inc., Lattie Const. Co., Inc. and The Employers’ Fire Ins. Co.).
    Wood Brown, III, New Orleans, for defendant-appellants-appellees (Fejta Const. Co., Inc.).
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   GULOTTA, Judge.

On April 9, 1974, eighteen-year-old Dennis Miller was electrocuted when he cut into high voltage wires while attempting to repair a damper on an air conditioning vent at the Ramada Inn Causeway in Metairie, Louisiana. His parents filed a wrongful death and survivorship action against numerous defendants, including certain coem-ployees as executive officers; corporations involved in the construction of the building and its conversion from an office building into a hotel; the corporation which operated the hotel; their insurers; and Ramada Inn, Inc., which issued the franchise on the hotel operation. The petition was later amended to incorporate a workmen’s compensation suit against decedent’s employer.

After trial on the merits, the trial court rendered judgment in the parents’ favor for $30,000.00 each, a total of $60,000.00, in solido against two executive officers; the company which operated the hotel and which employed decedent; the construction company which handled conversion of the building from an office into a hotel facility; and their insurer. The judgment dismissed the suit as against the other defendants. The cast defendants have appealed. Plaintiffs have cross-appealed, seeking an increase in quantum, and have appealed the dismissal of the construction company which initially constructed the building for use as an office building.

The building in which the accident occurred was constructed by Fejta Construetion Company for Lattie Development Company. Fejta subcontracted the electrical work to Muller Electric Corporation. Originally intended as an office building, the ten-story structure was completed in “shell.” form only, with the idea the inside would be finished to the specifications of the proposed lessee. Accordingly, each floor was provided with 277-volt wiring for installation of fluorescent lighting. The 277-volt lines were run in pairs so they could be coupled to provide 480-volts where higher current was needed (such as for the air conditioning unit on the roof). There was a circuit breaker panel on each floor, from which conduit (containing the wiring) ran up into a crawlspace between the ceiling of that level and the. floor of the level above.

Tom Lattie, president and chief shareholder of Lattie Development, decided to convert the building to a hotel facility, employing his own contracting firm, Lattie Construction Company, Inc., to do the conversion work. The electrical work was done by Lattie Construction Company employees, in consultation with George Hoffman, a licensed electrical contractor. They installed 110-volt wiring to the hotel rooms. The original 277/480-volt lines, though not needed above the second floor, were left in place and “stubbed off” and left energized. The circuit breaker panels and junction boxes for the 110-volt system were not marked to distinguish them from the 277/480-volt system.

In January 1974 Dennis Miller, who had just graduated from high school, was hired by Lattie Development Company, Inc., doing business as Ramada Inn Causeway, to work as a maintenance helper. Dennis had no training or experience in electrical work; his only previous jobs had been as a stock clerk in a supermarket and a restaurant waiter. On April 9, 1974, pursuant to a work slip posted on the maintenance room bulletin board, he went to one of the rooms to repair a malfunctioning damper on the air conditioning vent. Dennis apparently discovered the transformer on the damper was malfunctioning and decided to change it. The dampers operated off the 110-volt current. However, while working with a pair of pliers designed for lower voltage work, Dennis came into contact with the 277/480-voltage wires at the junction box and was electrocuted.

The evidence showed Dennis did not have a voltage tester or high-voltage pliers among the tools with him and that he had taken off his cumbersome chunky-heeled leather shoes before climbing into the crawlspace. He obviously was unaware of the additional danger involved in working on electrical wiring in a steel-framed building without rubber-sold shoes, or that the wires he had uncovered in the junction box carried a different and lethal voltage from those he was accustomed to working with.

LIABILITY

For the sake of clarity, we consider liability of the defendants involved in the construction and conversion of the building separately from the defendants who operated the hotel.

1. Construction of Building’s Sheii.

We do not agree with plaintiffs’ contention that Fejta Construction Company is liable because the work of its electrical subcontractor, Muller Electric, was substandard. In seeking to assess liability against Fejta, plaintiffs complain that the electrical code was violated by use of the same color wires for the 110-volt and the 277/480-volt systems; by failure to anchor the junction boxes properly; and by failure to mark the amount of voltage on the circuit breaker panels. Plaintiffs also claim that Fejta violated prevailing safety practices by failing to mark the junction boxes and by leaving the 277/480-volt system energized on completion of the shell.

It is clear that Fejta’s role was simply to provide Lattie Development with a shell structure suitable for later finishing into an office building. No defect in design or construction of the building was shown to be a cause of the accident. Fejta contemplated that the building, accepted by Lattie Development as an outer shell only, would be completed at a later date, by qualified and competent workers, into an office building. Fejta could not reasonably foresee that, in finishing and converting the building into a different type of facility, the 277/480-volt system would be unused but remain energized; or that the accountable people employed in the conversion and in operating the hotel would fail to carry out their responsibilities respecting safety considerations; or that an untrained and inexperienced employee would be allowed to work with the wiring. We agree, therefore, with the dismissal of the suit as against Fejta.

II. Conversion into Hotel.

The defendants involved in this phase were Lattie Construction Company; Thomas Lattie, its chief executive; Edward Lynch, field construction supervisor; and George Hoffman, the electrical consultant. The trial judge dismissed Lynch and Hoffman without giving reasons, but held Lattie Construction Company liable for failing to use “prevailing safety practices in the conversion.” Plaintiffs have not appealed the dismissal of Lynch and Hoffman. Accordingly, we discuss their responsibility and actions only insofar as they relate to the overall liability of Lattie Construction Company.

Those who use or handle inherently dangerous agencies, substances or instru-mentalities are held to an extraordinary degree of care. Prescott v. Central Contracting Co., 162 La. 885, 111 So. 269 (1927); Waters v. Southern Farm Bureau Cas. Ins. Co., 212 So.2d 487 (La.App. 3rd Cir. 1968), writ refused 214 So.2d 720 (La.). Everyone is under an obligation, whether his role be that of an agent or owner, of not allowing things subject to his control to injure another, either because of active or passive negligence, and whenever property in one’s control becomes dangerous to third persons there is a duty to act affirmatively, for the nonperformance of which, resulting in injury to third persons, liability on part of agent’ or owner will exist. Washington v. T. Smith & Son, 68 So.2d 337 (Orl.La.App. 1953).

The trial judge concluded:

“Although there is dispute among the experts as to whether the work done by Lattie Construction technically violated the 1968 National Electric Code, it is clear that Lattie Construction did not use prevailing safety practices in the conversion.
This Court believes that the crawlspace between the floors became lethal traps after the conversion. The junction box Dennis was working on was entirely unmarked so as to warn him of the amount of current or the danger; the box was supported only by its own conduit and not strapped down and braced in such a fashion as would have protected him against getting into it; and the wires inside the box for the 277-volt were of the same color and same gauge as the 110-volt lines. It should also be noted that the circuit panels remained unmarked therefore making it impossible to determine which panel controlled the 110-volt circuit and which panel controlled the 277-volt circuit. Consequently, it became customary that the maintenance helpers would work on the dampers hot so as not to inconvenience the customers at the motel.”

The evidence shows neither Lynch nor Hoffman directly supervised the conversion electrical work. Lynch, as field superintendent, was the field director of the conversion. Andrew Kinsella was the foreman of the electrical crew, and Ed Curren was the electrical engineer. Presumably they exercised responsibility for the electrical part of the conversion. However, neither Kinsella nor Curren were made defendants, and only Kinsella was called to testify. Lynch’s primary duty was to coordinate all aspects of the conversion work— the plumbing, carpentry, painting, wiring installation, etc. Hoffman, as electrical consultant for the conversion, had the responsibility of coordinating the new wiring layout and making certain the work would pass state and parish electrical inspections. He did not deal with existing lines, but rather drew up schematic diagrams for new lines to be installed in the hotel rooms.

Although both Lynch and Hoffman knew about the presence of the stubbed-off live 277/480-volt lines, neither made any attempt to have them de-energized or marked. Each felt that was a job to be left up to the electrical crew — Lynch, because he didn’t know much about electrical work and left it up to the electrical foreman; Hoffman, because he felt it was not part of his job; he considered that his duty was just to lay out the new lines.

Hoffman agreed that it would be better practice to mark the circuit breaker panels, but did not think it necessary to mark “every little junction box.” He did not believe it would have been necessary to mark things at the time of initial construction, because the building was incomplete and “there was nothing to identify” — no fixtures in the ceilings, the floors just wide-open shells. The wires were simply terminated with future use in mind.

Kinsella testified that Curren was in charge of the electrical conversion work in the building. Curren was a nebulous figure. Although several witnesses mentioned him in connection with both the conversion work and the hotel operations, he apparently was not called to testify. Thus, the extent of his responsibility and knowledge is unclear, although several statements indicate that ultimate responsibility for electrical safety may have been his by default. Kinsella also gave his opinion, as an expert electrician, that the 277/480-volt lines should have been de-energized if they served no purpose, the circuit breaker panels should have been identified, and the junction boxes should have been marked according to which voltage they served, although these things are not required by the National Electric Code.

Other electrical experts disagreed as to whether there were violations of the National Electric Code in the wiring installation, but they generally agreed that unused equipment should be de-energized.

Lattie Construction’s duty was to complete a building which would be safe for maintenance and occupation as a hotel. Electricity is unquestionably an inherently dangerous instrumentality. The evidence is undisputed that Lynch, Hoffman and Kin-sella were aware of the live 277/480-volt system, knew it could present a danger, but failed to do anything to avert it. Lynch even testified he discussed disconnecting it with Kinsella several times, but never followed through on it because he left it up to the electrical foreman.

Although it is not clear just which Lattie Construction employees are personally at fault in the situation, it is clear that Lattie Construction as an entity allowed the existence of an unsafe situation involving an inherently dangerous instrumentality. By the use of simple and reasonable safety practices (de-energizing the unused lines, marking the circuit breakers and junction boxes), Lattie could have prevented the deadly mistake which cost Dennis Miller his life. Accordingly, we agree with the trial judge’s finding that Lattie Construction Company, Inc. was negligent.

III. Operation as a Hotel.

Of the defendants involved in this phase, the trial judge held liable Valentine Lambert, the hotel manager, and Warren Galli-ano, the assistant chief of maintenance, as executive officers. He also included Lattie Development Co., Inc. in the judgment, without giving specific reasons. Ramada Inn, Inc. was dismissed, presumably because of a hold-harmless agreement between it and Lattie Development. Plaintiffs have not appealed that dismissal.

A. LIABILITY OF LATTIE DEVELOPMENT COMPANY

We agree with Lattie Development’s contention that plaintiffs’ exclusive remedy against it was in workmen’s compensation. R.S. 23:1032; Jenkins v. Archer-Daniels-Midland Co., 347 So.2d 314 (La.App. 4th Cir. 1977). It was error, therefore, for the trial judge to include Lattie Development in the judgment on the tort claim. However, the record fails to show that Miller’s parents were at all dependent upon him for support. (His father testified that Dennis paid no room or board, that he bought his own clothes out of his earnings, and that he was saving his money to buy a car.) Having failed to make a minimum showing of actual dependency, plaintiffs are not entitled to death benefits under the Workmen’s Compensation Act. R.S. 23:1231.

B. LIABILITY OF EMPLOYER’S EXECUTIVE OFFICERS

The evidence established that the maintenance crew at the hotel received the job assignments from work slips posted on the maintenance room bulletin board. On the day of the accident, Dennis Miller saw a notice on the bulletin board that the damper in one of the rooms was malfunctioning. He told Warren Galliano, who was his immediate superior and who- was the foreman in charge of the maintenance crew that evening, that he was going to change it. Galliano told Miller to go with him first to the kitchen to repair a stove and then they would attend to the malfunctioning damper. Miller insisted, however, on going to repair the damper. Despite the fact that Galliano had authority to direct Miller’s work and knew there was a safety rule requiring two men working together whenever something had to be done in the crawlspace, Galliano neither urged Miller further, nor ordered Miller to wait until there was someone available to assist him.

At approximately 5:15 p.m. Galliano went to the room where Miller was working in the crawlspace. He saw a ladder leading into the ceiling, climbed it, and peering inside the dark crawlspace, discovered Miller. Miller was crouching motionless beside a junction box with a pair of pliers in his hands, frozen in the act of peeling back insulation from the wires. Galliano became upset and apparently panicked.

There was an unexplained delay of approximately one hour between the time Galliano discovered Miller and the time an ambulance was called. When the ambulance arrived, the emergency medical technician could detect no vital signs and Miller was declared dead on arrival at the hospital.

The trial judge found Val Lambert “personally negligent” because he “made no effort to inform himself as to the background of Dennis Miller”. In written reasons he explained further that “as chief executive officer of the motel with the duty of hiring and firing personnel such as Dennis, it was the duty of Mr. Lambert to inform himself of the capabilities of his personnel and to see to it that the work assignments given to individuals were not so grossly out of line with the experience and capabilities of a particular worker.”

The court found Galliano “personally negligent” because he failed either to render first aid or to call for assistance until over an hour had passed. Basing his opinion on the medical evidence, the court concluded “it would be safe to say that survival would be more likely than not if prompt first aid would have occurred.”

Unquestionably, Lattie Development Company, as Miller’s employer, had a duty to provide its employees with a safe place to work. A duty existed on the part of the employer to warn inexperienced employees of the danger of employment and to instruct them in how to avoid these dangers; to assign employees to jobs within the scope of their training and experience; not to delegate potentially dangerous tasks to employees unsuited for them; to reasonably protect those employees who, due either to youth or inexperience, may be assumed unlikely to use proper precautions. Canter v. Koehring Company, 283 So.2d 716 (La. 1973); Pfister v. Phoenix of Hartford Insurance Co., 290 So.2d 362 (La.App. 4th Cir. 1974); Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir. 1974); Downey v. Callery, 338 So.2d 937 (La.App. 4th Cir. 1976), writs refused 340 So.2d 1389, 1390 (La.); cert. den. 431 U.S. 955, 97 S.Ct. 2676, 53 L.Ed.2d 271; Walker v. Graham, 343 So.2d 1171 (La.App. 3rd Cir. 1977), writ refused 346 So.2d 213 (La.). It is clear, moreover, that these duties were delegated, in differing degrees, to defendants Lambert and Galli-ano.

We agree with the trial judge’s conclusions regarding Lambert. The evidence indicates Lambert was personally responsible for overall management of the hotel. There was some conflict as to whether Lambert or Boudreaux handled hiring or firing of maintenance personnel. The trial judge evidently chose to believe it was Lambert’s responsibility. We find this to be a reasonable evaluation of the evidence and not clearly wrong. Lambert’s duty, therefore, was to be acquainted with Miller’s experience and capability, at least as shown on his employment application. That document clearly shows Miller had no special training and little work experience and none whatsoever in dealing with electricity.

As manager, Lambert also had the duty to provide his employees with a safe place to work. There is no evidence that he delegated responsibility for making safety inspections and safety regulations to anyone. Nonetheless, he apparently remained in ignorance of, or else allowed to continue without noticing it, the practice of sending maintenance helpers to change damper transformers, without regard to the degree of their experience. He should have been aware of this practice. That he was unaware of the presence of the live 277/480-volt line is of no consequence. We find he was personally negligent, in failing to maintain safe practices in the hotel maintenance program, and for the reasons assigned by the trial judge.

We also find Galliano personally negligent, but for different reasons than those assigned by the trial judge. Although Gal-liano’s inexplicable delay in seeking help for Miller seems on its face a dereliction, the medical evidence was completely inconclusive as to whether Miller was alive when Galliano found him, or could have been saved had aid been sought immediately. There simply was not enough evidence to find Galliano at fault on this basis. We find Galliano was at fault, however, in permitting an inexperienced and untrained employee to deviate from safety procedures. Galliano knew there was 277/480-volt wiring in the crawlspace; he also knew Miller was young and inexperienced, although Miller, on other occasions, had changed damper transformers. Galliano knew there was a rule requiring the men to work in pairs in the crawlspace. Galliano was in charge of the crew for that shift, and was Miller’s immediate supervisor. He had a personal duty to protect Miller against his own inexperience, and to enforce safety regulations. In permitting Miller to go off alone to repair the damper, Galliano was negligent.

We reject defendants’ contention that Miller was contributorily negligent. We find no merit to the assertion that Miller’s attempt to repair the transformer by himself and without using a voltage tester were violations of safety regulations. There is no evidence to show that Miller was provided with a voltage tester, or that he reasonably should have been aware he was dealing with dangerous current. Considering the undisputed evidence of Miller’s lack of training and experience, and the undisclosed danger he faced, we find he was not contributorily negligent.

Nor can we agree with plaintiffs’ contention that the damages awarded were inadequate. Considering the guidelines for appellate review of damage awards, as enunciated in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and Reck v. Stevens, 373 So.2d 498 (La.1979), we find the damages were neither inadequate nor excessive.

Consistent with the foregoing, that part of the judgment in favor of plaintiffs and against Lattie Development Company, is reversed and set aside. That part of the judgment in favor of plaintiffs and against Valentine A. Lambert, Warren Galliano, Lattie Construction Company, Inc. and the Commercial Union Assurance Company is affirmed. That part of the judgment dismissing plaintiffs’ suit against Ramada Inn, Inc., Fejta Construction Company, Inc., George Hoffman, Muller Electric Corporation and Edward Lynch is also affirmed.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED

      . “Stubbed off” means the lines were terminated in junction boxes in the ceiling of each level, with the ends of the wires covered by electrical tape or solderless connectors.

      . Muller Electric was sued but never served.

      . Because Thomas Lattie filed for bankruptcy prior to trial, all proceedings against him were stayed; therefore, we omit discussion of his liability.


text:
    Joe C. ASHLEY v. VOLKSWAGEN OF AMERICA, INC., Jefferson Parish Enterprise, Inc., d/b/a Bryan Motors, James J. Bryan, Raymond H. Eppling, and Fred J. Legendre.
    No. 10771.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Herschel L. Abbott, Jr. and Gerald F. Slattery, Jr., New Orleans, for plaintiff-appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, Charles L. Chassaignac, Gregory C. Thomas, New Orleans, for cross-appellant & defendant-appellee United States Fidelity and Guaranty Co.
    Bernard, Cassisa, Babst & Saporito, Walter M. Babst, Metairie, for defendants-ap-pellees James J. Bryan, Raymond H. Ep-pling, Individually and Raymond H. Ep-pling, as Liquidator of Jeff. Parish Enterprises, Inc. d/b/a Bryan Motors.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, J. David Forsyth, New Orleans, for defendant-appellee Volkswagen of America, Inc.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   GULOTTA, Judge.

Joe C. Ashley appeals from the dismissal of his redhibition suit arising out of the October 8, 1973 purchase of an Audi automobile from Bryan Motors. Prior to plaintiff’s purchase, this 1973 automobile had been used by the agency as a demonstrator and had been sold on two separate occasions to two prior owners. Because of mechanical problems, primarily overheating and electrical malfunctioning, and general owner dissatisfaction with the vehicle’s operation, the automobile had been returned to the agency by each purchaser and the purchase price refunded. Plaintiff claims that the automobile was represented by the salesman to be a demonstrator and that it was purchased as such; however, the purchase order signed by Ashley and the invoice indicated that the automobile was being sold as a used vehicle. The registration certificate states it was acquired new.

As did the prior owners, plaintiff experienced mechanical difficulties consisting primarily of overheating, electrical failures, air conditioning and brake problems. According to Ashley’s testimony and that of his wife, the numerous, continuous and recurring failures and unsuccessful attempts by Bryan and other Audi dealerships to repair the vehicle caused complete dissatisfaction and disgust, resulting in discontinued use of the vehicle in May 1975. At that time, because of the automobile’s failure to start, plaintiff ceased to use it and allowed the automobile to remain idle at his home, resulting in its complete deterioration. This suit was filed on March 31, 1975.

Between the date of purchase (October 8, 1973) and the time he stopped using the automobile (May 1975), plaintiff had driven it approximately 35,000 miles. According to a repair order, the automobile was serviced by Bryan as early as October 15, 1973 for complaints of an overheating engine, brake and electrical problems. On October 30, 1973, heater-control problems and transmission problems were corrected. Failure to start, electrical problems and overheating required that the automobile be returned to Bryan on February 13,1974. The automobile was again repaired under the warranty. Francis Mora, a Bryan Motors mechanic who had serviced this automobile and who thereafter was service manager at Pan-Am Motors and River Road Porsche-Audi, stated that on May 10th and 17th, and June 12th of 1974, the automatic transmission was repaired, rod bearings were replaced and the air conditioning was serviced. Ashley testified also that on September 18, 1974 the automobile was returned to the agency with a complaint that it was running hot. On September 19, 1974 electrical and overheating problems required repairs at a Shell service station.

The automobile was returned to the agency on October 10, 1974 with complaints of excessive oil use. Mora testified that on that occasion the oil and oil filter were changed, but the oil dipstick was missing from the vehicle. He explained that the absence of the dipstick resulted in the loss of oil. On October 23, 1974 a thermostat and hoses were replaced. On December 18, 1974 the automobile was returned with complaints of electrical failure. This complaint was followed on December 27, 1974 with complaints of excessive oil use.

The fuel pump was changed on January 10, 1975, and on January 19, 1975 the automobile was again returned with complaints of excessive oil use and overheating problems. The last repair order for the automobile was the January 19th occasion; at that time plaintiff had driven the vehicle approximately 25,000 miles.

The trial judge stated in written reasons for judgment that Mora, defendants’ expert witness, “expressed the opinion that there was no manufacturing defect noted by him in the car.” Relying on Mora’s further testimony, the court concluded:

“The court believes the only expert called in this matter that the principal cause of the car’s ultimate failure after 43,000 miles of use (35,000 by plaintiff and his wife) was inadequate or improper owner maintenance.”

Mora’s testimony generally supports the trial court’s conclusion that the problem was owner maintenance. This, however, is not the entire extent of this expert’s evaluations. Mora testified that the air conditioning unit was installed by the dealer. According to Mora, installation of an air conditioning unit by the dealer rather than by the factory is a complicated process. When the unit is not installed properly, electrical problems and overheating result. He stated also that the problems which occurred during Mexic’s ownership arose from his son’s abuse of the automobile. This abuse, according to Mora, resulted in brake failure and overheating, which can cause a distortion of the engine block and head. He also said that when the dipstick is missing, oil is lost, which could very well result in low oil pressure and cause rod bearing problems. Finally, Mora summarized:

“Most of the problems that I have seen through the repair orders are either overheating, generally it looked like most of them were corrected by replacing hoses or belts, one or the other. The electrical problems, it’s kind of hard to say. It had mostly overheating problems, too, because of electrical problems. They could have definitely come about in conjunction with the air conditioning, the installation. I can’t verify it, though.”

Mora then added:

“I really don’t see a factory defect in the car from this. ... I think a lot of the problems go back to the very beginning. The original owner with a lot of abuse on the automobile itself.”

We believe an objective analysis of the testimony leads to the conclusion that despite plaintiff’s numerous and continued complaints about the automobile during his eighteen or nineteen months’ operation of the vehicle, he nevertheless drove it for approximately 35,000 miles. According to the expert witness’ testimony, the causes of the problems were Ashley’s failure to provide proper maintenance to the automobile, abuse by a prior owner, and problems resulting from dealer-installed air conditioning.

Although it is clear from the record that plaintiff suffered a great deal of inconvenience during his eighteen or nineteen months of ownership and use of the car over approximately 35,000 miles, we cannot say that the defects were such as to warrant a rescission of the sale, considering the evidence of plaintiff’s own neglect of maintenance. We conclude, however, that the facts in our case entitle plaintiff to relief in quanti minoris. LSA-C.C. arts. 2543 and 2544.

Our case is factually similar to Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir. 1974), writs refused 303 So.2d 186 (La.1974). In Menville the automobile was purchased with approximately 19,000 miles on it, and the plaintiff drove it approximately 48,000 miles over a twenty-six-month period. Because the problems with the automobile in Menville were principally in the nature of excessive and extraordinary maintenance rather than rehibito-ry defects, and because of the long period of extensive use prior to the rescission demand, we concluded in Menville that a reduction in the purchase price was appropriate.

In Menville we allowed a reduction in the purchase price to the extent of $400.00, plus the cost of repairs. We stated that, where a plaintiff is entitled to a reduction in price, the amount of the reduction should be “the difference between the sale price and . . . the fair value as of the time of sale, if the defects had been known.” 300 So.2d 862. Factors to be considered include expert opinion testimony, costs of repairs, or evidence of any other facts bearing on the price to which informed parties would have agreed. Menville v. Stephens Chevrolet, Inc., supra; Williamson v. Strange, 323 So.2d 875 (La.App. 2nd Cir. 1975). See also, Couch v. Frichter’s Sportsmen’s Haven, Inc., 365 So.2d 901 (La.App. 4th Cir. 1978), writ refused 367 So.2d 1185 (La.); Davis v. Davis, 353 So.2d 1060 (La.App. 2nd Cir. 1977), writ refused 355 So.2d 549 (La.1978); Guillory v. Pitre Ford Co., 345 So.2d 1274 (La.App. 3rd Cir. 1977). Ultimately, the amount of the reduction is within the court’s discretion.

In a quanti minoris case it is the plaintiff’s burden to prove with a reasonable certainty the amount to which the price should be reduced. See Coco v. Mack Motor Truck Corp., 235 La. 1095, 106 So.2d 691 (La.1958). In our case evidence relating to a possible basis for reduction can be elicited only from the testimony of Mora, the expert. He stated that the last occasion on which he inspected the automobile was sometime in 1975, and at that time the automobile had been driven approximately 39,000 miles. He stated that it was running poorly and needed maintenance and tune up work. It was his opinion that the total repairs would amount to approximately $500 and that the expenditure of that amount would put the automobile in a “first-class condition.” We conclude under the circumstances that plaintiff is entitled to a credit to the extent of $500.

This suit was directed against the automobile dealership, Bryan Motors;- the distributor, Volkswagen of America, Inc.; James J. Bryan, President of Bryan Motors; Raymond Eppling, Vice President and General Manager of Bryan Motors; and U. S. Fidelity and Guaranty Company, which had issued a bond in favor of Bryan Motors providing protection for persons who suffer a loss as a result of any failure to comply with the conditions of a written contract made by Bryan in connection with the sale or exchange of an automobile in the conduct of its business.

Based on the undisputed testimony of Mora, we conclude that the defects did not exist at the time of manufacture and when the automobile was received by Bryan Motors from the distributor, there were no defects in the automobile. Under the circumstances, the manufacturer or distributor is not liable. See Rey v. Cuccia, 298 So.2d 840 (La.1974); Radalec, Incorporated v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955). The problems with the automobile resulted from the dealership’s failure to properly repair the automobile and service the vehicle after return to the agency by the prior owner and before the sale to the plaintiff. Under the circumstances we conclude plaintiff is entitled to a judgment against Jefferson Parish Enterprises, Inc., d/b/a Bryan Motors, in liquidation, and Raymond H. Eppling, in his capacity as liquidator.

Because no showing has been made there existed any dereliction of responsibility either on the part of James J. Bryan or Raymond Eppling in their capacity as executive officers of the corporation, plaintiff is not entitled to a judgment against these parties individually. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

U.S.F. & G. executed a surety bond with Jefferson Parish Enterprises, Inc. d/b/a Bryan Porsche-Audi in favor of the Motor Vehicle Commissioner for the State of Louisiana, in the sum of $5,000. The conditions of the bond, which was executed in conformity with the requirement for a dealership under R.S. 32:718(D), is that the dealer

“ . . . shall fully comply with the conditions of any written contract made by him as such dealer in connection with the sale or exchanges of any motor vehicle; and shall pay or cause to be paid by any person any loss or damages which any person shall sustain as a result of any failure to comply with the conditions of any written contract made by such dealer in connection with the sale or exchange of any motor vehicle or as a result of any violation of the laws of the State of Louisiana in the conduct of the business for which he is licensed.”

The language of the bond to a large extent follows the language of the statute, which is designed to protect the purchaser against the unscrupulous automobile dealer. We do not interpret the bond to be applicable to a situation where defects in an automobile result in a judgment in quanti minoris in favor of a purchaser, based on a seller’s implied warranties of fitness. In this case there was no failure on the part of the dealership to deliver the automobile as purchased by Ashley in accordance with the written agreement. Nor was there any misrepresentation relating to the identity of the vehicle, or any other unscrupulous dealing on the part of Bryan Motors.

Our courts have strictly construed statutory bonds. Long Bell Lumber Co. v. S.D. Carr Const. Co., 172 La. 182, 133 So. 438 (1931); State v. Read, 164 La. 315, 113 So. 860 (1927). See also Boudreaux v. Puckett, 433 F.Supp. 650 (E.D.La.1977). When we strictly construe the provisions of the bond, together with the purpose of the statute relating to the requirements of the bond, we conclude that U.S.F. & G.’s bond does not cover claims of the nature asserted by the plaintiff in this case.

Finally, defendants have raised the exception of prescription. Plaintiff’s suit was filed on March 31, 1975. Bryan Porsche-Audi last repaired the vehicle in February 1974; plaintiff learned in April 1974 that Bryan was going out of business. Bryan referred Ashley for further repairs to Pan-Am Porsche-Audi (subsequently renamed River Road Porsche-Audi), which had taken over servicing of vehicles under warranty from Bryan. In June 1974 he contacted Bryan again (although the dealership was in liquidation, they apparently were still servicing vehicles under warranty), but they refused to repair the vehicle any further. Thereafter plaintiff took the automobile to Pan-Am/River Road Porsche-Audi for repairs. The automobile was last repaired by Pan-Am in January 1975. Defendants contend prescription began to run from the date of the last repair by Bryan, February 1974, and thus the March 31,1975 lawsuit was untimely. We do not agree.

LSA-C.C. article 2534 provides that the redhibitory action must be instituted within one year from the date of sale, but this rule has been jurisprudentially extended. Where the seller attempts to remedy the defect, prescription begins to run only from the time he abandons the attempt to repair same. A. Baldwin Sales Co. v. Mitchell, 174 La. 1098, 142 So. 700 (1932); Woodward-Wight & Co. v. Engel Land & Lumber Co., 123 La. 1093, 49 So. 719 (1909); Mid-City Finance Co. v. Coleman, 232 So.2d 918 (La.App. 4th Cir. 1970); de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4th Cir. 1973), writ denied 286 So.2d 662 (La.); Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., 368 So.2d 747 (La.App. 3rd Cir. 1979), writs denied 371 So.2d 833, 834 (La.); Alexander v. Burroughs Corp., 350 So.2d 988 (La.App. 2nd Cir. 1977), affirmed and amended, 359 So.2d 607 (La. 1978); Williams v. Ford Motor Co., 307 So.2d 159 (La.App. 1st Cir. 1974), writ refused 309 So.2d 684 (La.).

Applying this rule to the situation here, we conclude either Bryan or the other agencies to which plaintiff was referred by Bryan performed work on the automobile within one year , of the date the suit was filed. Under the circumstances we conclude plaintiff’s cause of action has not prescribed.

Having so concluded, we reverse and set aside the judgment of the trial court. Judgment is now rendered and recast in favor of plaintiff, Joseph C. Ashley and against Jefferson Parish Enterprises, Inc., d/b/a Bryan Motors in liquidation and Raymond H. Eppling, in his capacity as liquidator, in the sum of $500.00. Plaintiff’s claim against Volkswagen of America, Inc., James J. Bryan, and Raymond H. Eppling individually and U.S.F. & G. are dismissed. The third party demands also are dismissed. Costs to be paid by Jefferson Parish Enterprise, Inc., d/b/a Bryan Motors.

REVERSED AND RENDERED.

      . The automobile was first sold on March 12, 1973 to Simon Mexic for approximately $5,000. The sum of $4,475 was reimbursed to him when this automobile was returned to the agency. At the time he purchased the automobile, it had been driven 3200 miles. The automobile was then sold to Annette Shapiro for $4,891, including tax and license. This entire amount was reimbursed to her when she returned the automobile to the agency. According to the purchase order and invoice, plaintiff paid $4,635, including tax and license. Mexic drove the automobile approximately 3,000 miles and Shapiro drove it approximately 500 miles. An additional 1,500 or 2,000 miles was apparently placed on the automobile by the dealership between the time of Shapiro’s return of the vehicle and plaintiff’s purchase.

      . Plaintiffs wife testified that although the automobile had been protected by a garage for some of the time the automobile remained idle and a plastic cover at other times, a glass had been blown out of it and a speaker had been taken. Ashley explained that the deterioration to the automobile was enormous. He described mildew covering the automobile and infestation of the interior by insects. A mechanic witness stated that when a car is permitted to remain idle for a period of two years, rubber components deteriorate and dry rot. Braking system absorbs a great deal of moisture and becomes deteriorated. The driving components of the car become rusty and rings freeze causing a great deal of damage.

      . These agencies serviced Audi automobiles after Bryan went out of business.

      . The odometer reading registered 33,000 miles. The automobile was used an additional 10,000 miles, apparently without complaint, until May 1975 when it failed to start, and use was discontinued by plaintiff.

      . Raymond H. Eppling answers as liquidator on behalf of Jefferson Parish Enterprises, Inc. d/b/a Bryan Motors, and avers that the corporation is fully liquidated and dissolved. Ep-pling testified also that Bryan Motors was a defunct corporation.


text:
    Janet URIAN v. E. John BULLARD, Charles L. Mo and New Orleans Museum of Art.
    No. 10777.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 7, 1980.
    Rehearing Denied March 17, 1980.

      Edward J. Norton, Jr., New Orleans, for plaintiff-appellant.
    Farris, Ellis, Cutrone, Gilmore & Lauten-schlaeger, Gary A. Lee, New Orleans, for defendants-appellees.
    Before GULOTTA, CHEHARDY and HOOD, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of her suit for statutory penalties and attorney’s fees where her employer failed to pay wages due within three days following the date her employment terminated.

In September 1977, during the Treasurers of Tutankhamen exhibit, Janet Urian had been employed at the New Orleans Museum of Art to work in the King Tut Gift Shop. Her rate of pay was $3.00 per hour, later increased to $3.50 per hour. Plaintiff worked at the Gift Shop without incident until January 14, 1978 (one day before the closing of the exhibit) but was admonished on that date by a coemployee for taking unauthorized and prohibited photographs of the Tut exhibit. The exhibition closed on January 15th; however, Urian did not work on that day. She was entitled to receive $182.23 in wages for the work period from January 1st through January 14,1978. Uri-an had been employed as a temporary full-time employee from September 1977 through January 15, 1978.

Plaintiff’s final check had been withheld at the direction of the museum’s director and the project supervisor. Upon inquiries made by plaintiff subsequent to the time she ordinarily would have received her check, she was advised that the unpaid wages were being withheld because she took unauthorized photographs of the exhibit. She was advised further that if the photographs and negatives were surrendered to the museum, or if an affidavit, in triplicate, was executed stating that the photographs had been destroyed, the check for the unpaid wages would be released to her. On January 27, 1978 plaintiff made demand in a letter addressed to Charles Mo, the project supervisor, for payment of the withheld wages. Mo acknowledged this letter of demand on February 1,1978. In that letter he reiterated the demand either for delivery of the photographs and negatives, or for the affidavits, as a prerequisite to payment of the unpaid wages. On March 8, 1978 plaintiff filed suit for wages, penalties and attorney’s fees. On March 15,1978 the museum sent plaintiff the unpaid wages due (i. e., the sum of $187.23), together with her W-2 form.

It is undisputed that plaintiff took photographs of the Tut exhibits and that she was aware the taking of photographs was forbidden. Signs were posted at the entrance to the museum and at various places in the museum stating that no photography was permitted. While acknowledging that she was aware of the prohibition, plaintiff explained she felt it applied to the visitors but not to the employees. She indicated further that on occasions she had taken photographs of other museum employees who were also photographing the exhibit.

It is also undisputed that the employer failed to timely pay the employee her earned wages. The museum director’s explanation for withholding her wages was that the prohibition against taking photographs was a reasonable security measure; that plaintiff was aware of this prohibition; and that withholding of the wages was a reasonable sanction for the purpose of having the photographs and negatives placed in the possession of the museum. He explained further that for security reasons the Cairo Museum and the New Orleans Museum of Art had entered into an agreement whereby no photographs would be permitted. At the time that the photographs were taken by plaintiff the museum director was in fear that the agreement and relationship between the Cairo Museum and the New Orleans Museum of Art might be in jeopardy.

R.S.23:631 clearly provides that an employee’s wages must be paid not later than three days following the date of discharge or resignation. While not disputing that the wages were not paid timely and in accordance with the statute, the defendants claim that withholding of the unpaid wages, under the circumstances, was not in bad faith, arbitrary, capricious or unreasonable. They contend that they cannot therefore be liable for statutory penalties' as set forth in R.S.23:632. In Pittman v. Eyrand, 290 So.2d 800 (La.App. 4th Cir. 1974) we stated:

“Our courts have not permitted the imposition of the penalties provided under LSA-R.S.23:632 when wages are withheld by the employer without the right to do so, unless the employer is found to be motivated by bad faith or is arbitrary or unreasonable. See Becker v. Choate, 204 So.2d 680 (La.App. 3rd Cir. 1967). Nor have penalties and attorney’s fees been awarded where there is a bona fide dispute as to wages due, and the employer refuses to pay the disputed wages. See Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959).” (290 So.2d at 802.)

See also Colbert v. Mike-Baker Brick Company of New Iberia, Inc., 326 So.2d 900 (La.App. 3rd Cir. 1976), writ application not considered, 329 So.2d 753 (La.); Clement v. Levenson, 236 So.2d 316 (La.App. 4th Cir. 1970).

While it appears from the cited cases that an employee is not entitled to statutory penalties and attorney’s fees absent a showing that the employer was motivated by bad faith or was unreasonable, arbitrary or capricious, we conclude nevertheless plaintiff is entitled to the penalties and attorney’s fees in the instant case. The photographs were not the property of the museum but of the plaintiff-employee. There were no signs posted stating that, in the event photographs were taken of the exhibit, the film and/or the camera would be confiscated. Furthermore, the museum would have no legal recourse against the employee for possession of the prohibited photographs in the absence of an agreement between the employer and employee that unauthorized photography would result in confiscation of the prohibited pictures and negatives. If, therefore, the museum was not entitled to the ownership or possession of the unauthorized photographs, we cannot conclude that withholding unpaid wages as a sanction for obtaining those photographs was justifiable. The museum clearly had no justification to withhold the wages as a sanction against the taking of the photographs by an employee.

We distinguish the result reached by us in Clement v. Levenson, supra, where we denied recovery for penalties and attorney’s fees based on a finding that the employer’s catalog, index cards and other paraphernalia had not been returned to the employer after demand had been made upon the employee. In that case we concluded that the employer’s actions in withholding wages were not arbitrary. The important distinguishing factor in the Clement case is the index cards and paraphernalia were property belonging to the employer; in the instant case, however, the photographs are property of the employee.

Accordingly, we conclude plaintiff is entitled to statutory penalties and to attorney’s fees. R.S.23:632 sets the penalties at either ninety days’ wages at the employee’s daily rate of pay, or full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages, whichever is the lesser amount of penalty wages. Plaintiff’s demand for payment was made on January 27,1978, and the museum tendered her wages on March 15, 1978, a period of less than ninety working days. Clearly, therefore, the second method is applicable.

A problem arises, however, in computing the amount Urian’s “full wages” would be over the approximate six and one-half week period between demand and tender, because the testimony showed that Urian began at $3.00 per hour, but was earning $3.50 an hour at the time of termination of her employment with the museum. She testified she worked a six-day week, at least forty hours per week but frequently more.. At $3.50 an hour her minimum weekly gross would have been $140.00. She testified at another point, however, that she averaged a gross of $98.27 per week. Since the $98.27 average gross included the period before her raise to $3.50 an hour, however, we find it equitable to compute her wages at the hourly rate received at time of termination.

Furthermore, because there was no testimony as to the average amount of overtime worked, we can only base our computation on a forty-hour week. The period for which penalty wages are due is 6.71 weeks. Accordingly, we set the amount of penalty wages due plaintiff at $939.40. (40 hrs./week X $3.50/hour = $140.00/week X 6.71 weeks = $939.40).

We conclude, finally, that plaintiff is entitled to an award for attorney’s fees in the amount of $500.00.

Accordingly, the judgment of the trial court dismissing plaintiff’s suit is reversed and set aside. Judgment is now rendered in favor of plaintiff, Janet Urian, and against defendant, the New Orleans Museum of Art, in the sum of $939.40 as penalty wages, and in the further sum of $500.00 as attorney’s fees. All costs to be paid by the New Orleans Museum of Art.

REVERSED AND RENDERED.

      . The statutes under which the claim arises are R.S.23:631 and R.S.23:632.
      R.S.23:631 reads as follows:

        “Discharge or resignation of employees; payment within three days after termination of employment.

      A.Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
      C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.”
      R.S.23:632 reads as follows:

        “Liability of employer for failure to pay; attorneys’ fees.

      Any employer who fails or refuses to comply with the provisions of R.S.23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time, the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

      . We find no merit to plaintiffs contention that the penalty should be 90 days’ wages because she delayed cashing the paycheck. The statute, which is to be strictly construed, states “until the employer shall pay or tender the amount of unpaid wages.” (Emphasis added.) The museum tendered her wages on 3/15/78 and Urian’s own delay in cashing the check can neither inure to her benefit nor work detriment to her employer.