Young v. Fremin-Smith, Inc.
| Decision Date | 05 July 1972 |
| Docket Number | INC,No. 5035,FREMIN-SMIT,5035 |
| Citation | 265 So.2d 341 |
| Parties | Curtis YOUNG v. |
| Court | Court of Appeal of Louisiana — District of US |
Gordon Hackman, Boutte, for plaintiff-appellant.
Vial, Vial & Lemmon, Leon C. Vial, III, Hahnville, for Terrell Carmouche, defendant-appellee.
Before STOULIG, BOUTALL and BAILES, JJ.
This is an appeal from a judgment rejecting plaintiff's demands for unpaid wages, statutory penalties, and attorney's fees.
Plaintiff, Curtis Young, instituted this action seeking to recover unpaid wages for two days, totalling $90, together with statutory penalties of $4,050, for the maximum period permitted under the statute and reasonable attorney's fees. 1 Named as defendants-employers were Ronald Carmouche and/or Terrell Carmouche; Fremin-Smith, Inc.; and P & L Hauling, Inc. Peremptory exceptions of no right of action were maintained and the suit was dismissed as to Fremin-Smith, Inc., and P & L Hauling, Inc., from which ruling no appeal has been taken. The exceptions filed by Ronald Carmouche are still pending. Plaintiff elected to prosecute his suit against the remaining codefendant Terrell Carmouche.
.the employer filed a general denial of liability and urged special pleas of payment and setoff against plaintiff's claim. He also reconvened for $4,000 in damages to his equipment caused by the negligent conduct of appellant and for the loss of rental occasioned by appellant's tardiness or failure to report for work.
Prior to a discussion of the merits of this appeal, certain observations should be made. The matter was submitted in the trial court on written stipulations and depositions. No witnesses were presented or oral testimony adduced on the trial. Appellant failed to file a brief and was not permitted to argue the matter on appeal. (Rule IX, § 11 of the Uniform Rules of the Courts of Appeal.)
The record discloses that appellant was engaged as a bulldozer operator at a daily wage of $35 which he claims was later increased to $45 per day. The employer disputed the alleged increase, and the trial court found that the appellant failed to substantiate his contention. In view of the admitted fact that Young only worked 1 1/2 weeks for appellee before being discharged, it is highly questionable that his wages would have been increased in so short a period of time.
Carmouche acknowledged that Young had not been paid for the last two days of his employment. He justified the refusal to pay these wages on the basis that the appellant was indebted to him in a greater sum for damage caused to his equipment. As the result of this admission by the employer, this appeal presents two issues: (1) Did the defendant prove his setoff of damage to the equipment? (2) Is the defendant allowed to use the prescribed claim of equipment damage as a setoff?
The only evidence relating to the damage of the equipment (Bantam crane) was the deposition of the appellee, who stated: 'He (Young) lowered the boom over the cab and also caused the bucket to strike the cab, damaging the cab and damaging the boom.' Later he described the damage to the door of the cab as 'mashed up' with a 'dent' 6 to 8 inches deep and that the boom was bent 'right at the heel.'
Mr. Carmouche estimated it would cost $100 to $150 to repair the cab and from $600 to $650 to straighten the boom. He personally effected repairs to the cab but the boom is still unrepaired.
Though the employer did not furnish any written estimate of cost to repair the damage or any other evidence of the fact and extent of damage except his unsupported statements in his deposition, we must conclude, for several reasons, that it constituted a preponderance of evidence sufficient to warrant a recognition of these facts. Appellant never denied that he damaged the equipment or disputed the cost of repair, and the only countervailing evidence is embodied in Article IV of the stipulation, which reads:
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