#### George BENHAM d/b/a “Four Keys”, Plaintiff-Appellee, v. Frank GUILBEAUX, Defendant-Appellant.

No. 6244.

Court of Appeal of Louisiana, Third Circuit.

Feb. 6, 1978.

Rehearing Denied March 29, 1978.

Writ Refused May 12, 1978.

*1063Watson and Foret, JJ., both voted for a rehearing.

McHale & Bufkin by Louis D. Bufkin, Lake Charles, for defendant-appellant.

Scofield, Bergstedt & Gerard by Benjamin W. Mount, Lake Charles, for plaintiff-appellee.

Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and FORET, JJ.

GUIDRY, Judge.

Plaintiff sues to recover three weeks wages allegedly due under a four week contract of employment.

Plaintiff, Benham, was engaged by defendant, Guilbeaux, owner and operator of a night club known as the “Polynesian Room”, to provide music for the entertainment of his patrons. Under the contract, which was signed by Benham and Guil-beaux, the former was to provide a group of four (4) musicians, including himself. The contract was to run from August 19th through September 13, 1975. The contract provides that the musicians are engaged severally and each may enforce the agreement. The contract further provides for payment to the band weekly of the sum of $1300.00, which sum, according to the terms of the agreement, is to be distributed by the leader, on behalf of the employer, to the musicians, including himself, as indicated on the opposite side of the contract. The opposite side of the contract is not completed. Finally, the agreement provides for an *1064award of 6% contractual interest plus attorney’s fees in the event resort to judicial proceedings is necessary for the enforcement of its provisions.

At the end of the first week Guilbeaux paid to Benham the sum of $1300.00 but then advised Benham that his services and that of the other musicians were no longer needed. This suit followed wherein Ben-ham seeks recovery of all wages due the band for the remaining three weeks, i. e., $3900.00; contractual interest plus attorney’s fees under the agreement; and, penalties and attorney’s fees under LSA-R.S. 23:631.

The trial court concluded that plaintiff was entitled to recover the sum of $2100.00 under the employment contract because Gu-ilbeaux terminated same without just cause; LSA-R.S. 23:631 was not applicable because Benham was not hired by the day, week or month but rather for a specified period, and in any event, he was admittedly paid all wages earned up to the time of his discharge; and, he was entitled to an award of $700.00 as attorney’s fees under the contract.

Defendant appealed. Plaintiff has answered the appeal and seeks an increase in the principal amount of the award as well as an increase in attorney’s fees.

The principal issue on appeal is whether defendant was justified in terminating the employment contract. The trial judge resolved this factual issue adverse to defendant and stated:

> “In this case, while there’s some testimony that Mr. Benham has taken excessive breaks, and he drank a lot, really what I find here is simply that Mr. Guilbeaux was dissatisfied with Mr. Benham’s music, because Mr. Guilbeaux’s customers didn’t like the type of music Mr. Benham was playing . . . There has been no showing here that the type of music that the plaintiff played was not quality music. And to say that an owner can get out of a contract simply because he found that the type of music did not satisfy his customers, in this Court’s view is not enough to permit him to breach the contract . . . ”

Appellant suggests that the trial court erred as a matter of law in making this finding and cites in support of such contention the case of *Lee v. Blackwell,*286 So.2d 185 (La.App. 4th Cir. 1973). In Lee, the trial court resolved the factual dispute favorable to the proprietor finding that the entertainer whose employment was terminated drank excessively, did not have an adequate repertoire, and treated the patrons with disrespect. We have no quarrel with the holding in *Lee*but find it clearly inapposite to the facts of this case as found by the trial judge.

LSA-C.C. Article 2749 provides:

> “If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

The trial court determined that plaintiff’s employment was terminated by defendant without any serious ground of complaint. We will not disturb this conclusion on appeal finding a reasonable basis in the record to support same. *Canter v. Koehring Company,*283 So.2d 716 (La.1973).

We next consider the amount awarded by the trial court. Plaintiff contends that he paid the other three musicians employed by Defendant for the remaining three weeks of employment and therefore the trial court erred in not awarding him judgment for the full contractual amount, i. e., $3900.00.

There is no evidence in the record indicating that plaintiff actually paid the other three musicians their wages other than his unsupported statement to that effect. The trial court concluded that plaintiff failed to support his demand with proper and sufficient proof. We find no error in this conclusion.

We do find error, however, in the amount awarded Mr. Benham. As afore-stated, the trial court awarded plaintiff *1065judgment for the principal sum of $2100.00 and in doing so assumed, without benefit of any competent evidence, that Benham had agreed to pay the other three musicians $200.00 weekly, and that he was to receive $700.00 weekly. In this connection, the trial court stated:

> “But the court has to make some decision in this matter and I will, for purposes of this record, assume that Mr. Benham paid the other three gentlemen Two Hundred Dollars a week each, and in addition paid their expenses, which means that Mr. Benham would be entitled to recover Seven Hundred Dollars per week for a total of three weeks . . . ”

Decisions cannot be based on mere assumption of facts. *Bates v. Monzingo,*221 La. 479, 59 So.2d 693.

There is no competent evidence in the record concerning the exact amount each musician, including Benham, was to be paid out of the $1300.00 which the band was to receive weekly. The contract, by its terms, provides that Benham was to distribute the total received weekly to the musicians, including himself, in the amounts indicated on the opposite side of the agreement. The reverse side of the contract was left blank. Under these circumstances, we conclude that each musician was entitled to sue for and recover one-fourth of the amount which defendant agreed to pay the band weekly, i. e., $325.00 per week. Therefore, we will amend the lower court judgment to reduce the principal amount of the award to $975.00.

We find no error in the trial court’s refusal to allow plaintiff penalties and attorney’s fees under LSA-R.S. 23:631 et seq. The cited statute is clearly inapplicable to the instant controversy.

Finally, we conclude that the amount awarded plaintiff as attorney’s fees under the contract is adequate and will reasonably compensate plaintiff’s attorney for services on the trial level as well as on appeal.

For the above and foregoing reasons the judgment of the trial court is amended so as to reduce the principal amount of the award from $2100.001 to $975.00. In all other respects the judgment appealed from is affirmed. Costs of this appeal are to be borne by defendant-appellant.

AMENDED AND AFFIRMED.

WATSON, J., dissents and assigns written reasons.

FORET, J., dissents.

1

. The judgment reads “Twenty-One Thousand and no/100 ($2100.00) Dollars”, but the reasons for judgment indicate $2100.00 is the correct amount. We need not classify the defect as one of form or substance as we amend the judgment as to the principal sum to be awarded.

WATSON, Judge,

dissenting:

In considering this appeal it must be constantly remembered that under consideration is a rather unique personal services contract1 and that the fundamental cause from the employer’s point of view is that the “Four Keys” were engaged “. for the entertainment of Defendant’s patrons”. TR. 3 (plaintiff’s petition).

The primary issue is whether Guilbeaux was justified in terminating the employment of the Four Keys.

The contract of employment between Gu-ilbeaux and the Four Keys provides that the four musicians are Guilbeaux’s employees and states:

> “6. The Employer shall at all times have complete supervision, direction and control over the services of musicians on this engagement and expressly reserves the right to control the manner, means and details of the performance of services by the musicians. . . ” (TR. 32).

The contract later adds:

> “The leader shall, . . . carry out instructions as to selections and manner of performance.” (TR. 32).

*1066The contract thus provides the right of direction and control by the employer, the primary test for an employment relationship. *Florence v. Clinique Laboratories, Inc.,*347 So.2d 1232 (La.App. 1 Cir. 1977). The question of employee status is a factual one but the trial court found that there was an employment relationship. (TR. 68). *Hudson v. Allstate Insurance Company,*169 So.2d 598 (La.App. 2 Cir. 1964).

The trial court concluded that the type of music played by the Four Keys did not satisfy Guilbeaux’s customers2 but stated that this was insufficient reason for discharge of the band.

Guilbeaux’s records show *gross*sales of $1583 during the week that the Four Keys played; gross sales of $2349.55 during the preceding week; and gross sales of $1610.28 during the following week. The band received $1300 a week.

Plaintiff Benham has extensive musical education and experience. Benham said his group was unable to perform “Matilda”, a locally popular song which was requested. Benham was first advised that Guilbeaux was dissatisfied by booking agent Mike Ford, who called him and said Guilbeaux was not happy with the group because business was off. Benham admitted there was a large crowd at the Polynesian Room on only one night of his week there. Guil-beaux advised Benham on August 23 that he could not afford to keep the group any longer. Benham testified that he had borrowed money to pay the other three band members for the remaining three weeks of the engagement but produced no records to substantiate this fact. Benham has no authority or mandate to act as agent to collect any sums due the other band members.

Randy Autry Tyler, a band member, testified in answers to interrogatories that not many people frequented the Polynesian Room during their week’s engagement.

Both Guilbeaux and Rusty Morine, who was employed as a barmaid, testified that the band took excessive breaks and did not play locally popular music. Ms. Morine identified a list of songs which the Four Keys were asked to learn how to play but which they failed and refused to learn or rehearse. She confirmed that regular customers left because they did not care for the music;1 which was different from that to which they were accustomed. Guilbeaux is now out of the nightclub business and Ms. Morine is employed elsewhere.

The evidence adduced establishes without contradiction that business at the Polynesian was poor during the Four Keys’ engagement.

LSA-C.C. art. 2749 states:

> “If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.”

An employee alleging wrongful discharge under this article bears the burden of proving that his discharge was without just cause. See the discussion at 23 La.L.R. 553 and *Blue v. Chandler,*5 So.2d 210 (La.App. 1 Cir. 1941). The trial court erred in placing the burden of proof on defendant Guil-beaux to show cause or justification for terminating the employment agreement. Generally, unsatisfactory services which result in a monetary loss justify an employee’s discharge. Compare *Southern Pacific Transport Company v. Doyal,*289 So.2d 882 (La.App. 4 Cir. 1974).

There is little doubt that a band which not only does not draw business into a lounge but drives customers away gives the owner “serious ground of complaint”. The Louisiana law on the point was stated in *Georesearch, Inc. v. Morriss,*193 F.Supp. *1067163 (D.C.La., 1961) affirmed 298 F.2d 442 (U.S. 5 Cir. 1962), to be as follows:

> “. . . if a person is not achieving the results for which he was hired, whether it be due to incompetency, inefficiency or some other cause within his control, the employer may discharge him from his employ.” 193 F.Supp. 177.

We agree with this further statement by the court in *Georesearch, Inc.,*supra:

> “This rule is entirely consistent with our economic system where competition is the order of the day. If an employer must retain an employee who is inefficient and incompetent adequately to perform the job he was hired to do, the employer would be met with rising overhead expenses so burdensome as completely to stifle his economic growth and competitive ability. Such a rule would place a heavy burden on the employer to conduct a costly, time-consuming investigation on each prospective employee to ascertain his abilities and shortcomings, knowing that if his investigation proved erroneous the employee must be paid in full to the end of the term for which he was employed.” 193 F.Supp. 178.

I would conclude that defendant Guil-beaux was not required to continue the employment of George Benham and the other band members when such employment constituted a financial hardship.

I respectfully dissent.

1

. A personal services contract differs from an ordinary contract, for example, in that it is not affirmatively enforceable. If Benham and the other three “Keys” had walked off the job, Guilbeaux could not have forced them by legal action to play. *Fletcher v. Rachou,*323 So.2d 163 (La.App. 3 Cir. 1975).

2

. This finding brings the instant case under the rule expressed in *Lee v. Blackwell,*286 So.2d 185 (La.App. 4 Cir. 1973). The difference is only in degree.