Newspaper Production Co. v. Perry

• Court: Court of Appeal of Louisiana
• Writing for the Court: FRED W. JONES, Jr.
• Citation: Newspaper Production Co. v. Perry, 404 So.2d 1331 (La. App. 1981)
• Decision Date: 29 September 1981
• Docket Number: No. 14657,14657
• Parties: NEWSPAPER PRODUCTION COMPANY, Plaintiff-Appellant, v. Douglas PERRY, Defendant-Appellee.

Page 1331

404 So.2d 1331

NEWSPAPER PRODUCTION COMPANY, Plaintiff-Appellant, v. Douglas PERRY, Defendant-Appellee.

No. 14657.

Court of Appeal of Louisiana, Second Circuit.

Sept. 29, 1981.

Love, Rigby, Dehan, Love & McDaniel by William G. Nader, Shreveport, for plaintiff-appellant.

D. G. Tyler, Shreveport, for defendant-appellee.

Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.

FRED W. JONES, Jr., Judge.

From a judgment rejecting its demands against a former newspaper carrier for failure to pay for newspapers allegedly sold to him for resale, plaintiff ^* appeals. We affirm.

Plaintiff's suit was premised on the contention that between December 1, 1978 and March 1, 1979 its contractual relation with defendant was that of vendor-vendee of newspapers for resale. However, the trial judge concluded that plaintiff had failed to prove "what kind of contract there may have been between the plaintiff and the defendant."

The record reveals that in the latter part of 1978 defendant learned from his brother, a newspaper carrier for plaintiff, that a newspaper route in north Shreveport would soon become available because of plaintiff's intention to dismiss its current carrier. The latter's drinking problem had led to a pronounced decline in the sale of newspapers along this particular route. At his brother's prompting defendant met with plaintiff's route supervisor (whose name never appeared in the record) to discuss the possibility of defendant assuming responsibility for the newspaper route.

According to defendant, the supervisor conceded that plaintiff's newspaper circulation along this route was in a deplorable state, as evidenced by the fact that the supervisor possessed neither an accurate list of subscribers nor their home addresses. Defendant testified that, as an inducement for his assumption of responsibility for "straightening out" the circulation of newspapers along this route, the supervisor agreed that defendant would receive a salary of $1,000 per month payable out of his receipts from newspaper sales. Since he never collected that amount during any one of the three months that he worked for plaintiff, defendant denied owing anything.

Plaintiff did not refute defendant's testimony concerning his contractual relationship with plaintiff. It did not call as a witness the route supervisor who contracted with defendant. In fact, none of plaintiff's employees who testified definitely established the identity of that supervisor. Elmer Lockwood, supervisor for another route, stated that "Ronnie Smith handled all of it." The witness then added that "Lyles", a district manager at the time, might have made representations to defendant. Judy Skinner, credit manager in plaintiff's circulation department, thought that "Lyle Roach" hired defendant, but explained that this party was no longer in plaintiff's employ.

In summary, defendant claimed that during the period in question he was an employee of plaintiff rather than an independent contractor who purchased newspapers for resale. Plaintiff presented no evidence to rebut this contention. Consequently, we agree with the trial judge that plaintiff failed to prove by a preponderance of the evidence that defendant purchased newspapers from it.

However, even if plaintiff did establish the sale of newspapers to defendant, the trial judge correctly ruled that plaintiff did not prove by competent evidence the balance due on this account.

According to the evidence presented at the trial, each of plaintiff's route supervisors prepared daily draw sheets for his newspaper carriers, showing the number of newspapers for which the carrier was charged on that particular day. The information from the daily draw sheets was then posted on a daily basis to ledger sheets by employees in plaintiff's circulation department. At the end of the month the information from the ledger sheets was transposed to a ledger card for the individual carrier by employees in plaintiff's bookkeeping department.

Plaintiff sought to prove the balance owed by defendant by offering in evidence defendant's ledger card. Judy Skinner, custodian of the ledger card, identified it as accurately reflecting the status of defendant's unpaid account. This witness made some of the entries pertaining to defendant on the ledger sheets, but did not post that information to the ledger card tendered in evidence nor did she supervise that posting. The party who performed this task for plaintiff was neither called as a witness nor identified.

Louisiana has long recognized the business records or regular entries in the course of business exception to the hearsay rule in both civil and criminal cases. State v. Monroe, 345 So.2d 1185 (La.1977); State v. Hodgeson, 305 So.2d 421 (La.1974); Theus, Grisham, Davis & Leigh v. Dedman, 401 So.2d 1231 (La.App.2d Cir. 1981); Herlitz Construction Co. v. Clegg Concrete, Inc., 378 So.2d 1002 (La.App. 1st Cir. 1979).

This exception to the hearsay rule provides, in general, that a permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by...