Fox v. Don Siebarth Pontiac, Inc.

• Court: Court of Appeal of Louisiana
• Writing for the Court: Before GUIDRY, LABORDE and YELVERTON; YELVERTON
• Citation: Fox v. Don Siebarth Pontiac, Inc., 458 So.2d 575 (La. App. 1984)
• Decision Date: 10 October 1984
• Docket Number: No. 83-899,83-899
• Parties: Steve FOX and Scott Bailey, Plaintiffs-Appellants, v. DON SIEBARTH PONTIAC, INC., Defendant-Appellee.

Page 575

458 So.2d 575

Steve FOX and Scott Bailey, Plaintiffs-Appellants, v. DON SIEBARTH PONTIAC, INC., Defendant-Appellee.

No. 83-899.

Court of Appeal of Louisiana Third Circuit.

Oct. 10, 1984.

Adam L. Ortego, Jr., Sulphur, for plaintiffs-appellants.

James L. Babin, Lake Charles, for defendant-appellee.

Before GUIDRY, LABORDE and YELVERTON, Judges.

YELVERTON, Judge.

Steve Fox and Scott Bailey, car salesmen, appeal a trial court's rejection of their suit against their former employer, Don Siebarth Pontiac, Inc., for the commission on the sale of a vehicle. As co-plaintiffs, Fox and Bailey each demanded one-half of the commission on the sale of a 1982 Mercedes-Benz, claiming the sale was procured through their joint efforts, though not consummated until three months after Fox, allegedly the prime "procuring cause", left defendant's employ. The trial court found for defendant, concluding on the facts that plaintiffs had failed to prove they were entitled to a commission under the terms of their employment. Finding no manifest error in this factual determination, we affirm.

In the early part of 1981, while both Fox and Bailey were working for the defendant dealer, it was learned that Pat O'Carroll, a Lake Charles restaurateur, was interested in buying a Mercedes-Benz. It is disputed whether it was Fox or another salesman, Charles Shipp, who worked on the deal first, but there is no question that it was Fox, assisted by Bailey, with whom O'Carroll was dealing when an agreement was reached, the car ordered, and a $1,000 deposit obtained. A car meeting the buyer's specifications was hard to find, and took time; the deposit, at O'Carroll's request was returned to him in about May. The customer still wanted the car, however, and defendant's sales manager continued his efforts to locate one. On August 30 Fox was terminated for reasons unrelated to this deal. The car arrived in early December and, nearly three months after Fox left defendant's employ, the sale was completed by the defendant's sales manager. Later that month the other plaintiff, Bailey, resigned.

Plaintiffs, like all defendant's salesmen, were paid on a commission basis. In the middle of each month they were paid a draw of $200. At the beginning of each month their paycheck consisted of the commissions earned on sales completed the month before. It was understood and undisputed that a commission was not payable until the sale was completed, and a completed sale, by everybody's definition in the case, meant closing of the sale, payment of the price, and delivery of the car to the buyer.

The employment agreement was a verbal one. Both sides testified that the subject of payment of commissions on sales completed after termination of employment was never discussed. The issue, therefore, is whether plaintiffs proved facts supporting an inference that the employment contract for sale of cars provided for the vesting of commissions once a salesman became the "procuring cause" of a later completed sale, regardless of whether or not he participated in the closing of that sale.

In a suit to recover additional wages in excess of $500 under an oral contract of employment the basic rule governing proof is Civil Code art. 2277, which requires that plaintiff prove his case by one credible witness "and other corroborating circumstances." Taunton v. Cane Air, Inc., 405 So.2d 624 (La.App. 3rd Cir.1981); Taylor v. Clark, 304 So.2d 728 (La.App. 4th Cir.1974). Whether the evidence offered by plaintiff corroborates his claim is a finding to be made by the trier of fact, and is not subject to reversal unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Taunton v. Cane Air, Inc., supra.

Although the trial judge did not give written reasons for judgment, it is clear from his comments made during and at the conclusion of the trial that he found plaintiffs failed to prove that they were entitled to a commission under the terms of their employment. It is evident that the trial court concluded that company policy and the understanding of the dealer's employees was that a salesman did not earn a commission until he completed the sale by getting the purchase price and delivering the vehicle.

There is evidence in the record offered by defendant explaining its practice and policy for the payment of commissions, which fully supports the trial judge's factual determination. There was testimony that a car salesman's work is not ended by simply finding a person willing and able to purchase; he must complete the sale, sometimes help arrange financing, get paid, make delivery of the car to the customer, instruct the buyer in the vehicle's operation, and answer questions and hear complaints after the sale is completed. The salesman's commission is considered payment for these services as much or more than for the selling job that got the sale in the first place.

Fox testified his understanding was that a salesman earned the commission if he made a sale that was ultimately consummated by payment and delivery, regardless of whether he was in the employ of the dealer when the sale was completed or not. He said he understood he would be paid, that being only fair. The dealer, just as vociferously citing fairness, declared that the practice to which he adhered was well known among his employees because it was "common horse sense" and did not need discussion. This was the testimony of Jack Hebert, the sales manager. Carol Clarke, defendant's finance and insurance manager for six years was, at the time of trial, employed by another dealer in Lake Charles. She testified that during the six years she worked for defendant, she was paid on a commission and salary basis, and that she was not paid for sales she began working...