Leffingwell v. Atlas Asphalt Co., Inc.

• Decision Date: 04 October 1979
• Docket Number: No. 10658,10658
• Citation: 376 So.2d 175
• Parties: F. C. LEFFINGWELL v. ATLAS ASPHALT CO., INC.
• Court: Court of Appeal of Louisiana — District of US

Page 175

376 So.2d 175

F. C. LEFFINGWELL v. ATLAS ASPHALT CO., INC.

No. 10658.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 4, 1979.

Norman J. Pitre, Luling, for plaintiff-appellant.

Joel T. Chaisson, Destrehan, for defendant-appellee.

Before REDMANN, LEMMON and BOUTALL, JJ.

LEMMON, Judge.

In this action to recover the balance allegedly due on a verbal employment contract the issue on appeal is whether the trial court properly granted a motion to dismiss the action at the close of plaintiff's evidence, made by defendant pursuant to C.C.P. art. 1810B.

Plaintiff, with 40 years of experience in the asphalt business, accepted employment as a consultant with defendant corporation in late November, 1974 and worked in defendant's asphalt operations through October 4, 1976. Plaintiff testified that Joseph Romano, defendant's president, agreed to pay him a $2,000.00 retainer at the time of employment and a salary of $20,000.00 per year, plus expenses and transportation. Plaintiff admitted that he was furnished an automobile and that all his expenses were paid, but claimed a balance of approximately $25,000.00 was due him under the employment contract, since he had only received $15,700.00. He stated he did not collect a regular salary, explaining that since the company was just starting operations he drew only enough money to meet his minimum living expenses until the business became stabilized.

A number of witnesses verified that plaintiff worked for Atlas every day at the plant or in the field and that he was consulted by employees and inspectors for business decisions and for discussion of problems. The bookkeeper, who prepared the payroll checks, testified that while the salaries of other employees were paid on a fixed schedule, as to payment of plaintiff's salary "there was never anything set and every month if he needed money I would pay him". The company's records show plaintiff was issued checks for "consultant fee" at various times of the month in amounts of $300.00, $500.00, $1,000.00 or $1,500.00, without any regular pattern.

Thus, the only dispute in this case is the amount of salary defendant agreed to pay plaintiff for his services. Plaintiff testified that the agreement was for $20,000.00 annually and neither that testimony nor his explanation as to his method of drawing checks was contradicted in any manner. Indeed, as to the method of drawing wages the bookkeeper's testimony was at least consistent with plaintiff's.

Defendant stated its motion to dismiss was based "on the grounds that this alleged verbal contract is one in excess of $500.00; that the Plaintiff has not carried his proof by presenting his evidence with one credible witness and other corroborating circumstances". On this record it was improper to grant a motion to dismiss at the close of plaintiff...