dissenting.
I respectfully dissent. The majority overturns a jury verdict because “this action in substance was an action on the contract of employment.” The majority recognizes that under Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493 (Tex.1991) there may be an action for tort independent of the contract action. They then say: “In the case at hand, there exist no duties on the part of the appellant to the appellee, other than those arising from the contract.” I disagree.1
*345The jury found that Wal-Mart maliciously withheld the wages of Mr. Coward. This action is extraneous to the contract. See Caplan v. St. Joseph’s Hosp., 188 Cal.App.3d 1193, 233 Cal.Rptr. 901 (Dist. 1 Div. 1, 1987). The issue before the jury was not whether Wal-Mart owed Coward the wages, nor whether they withheld the wages; for certainly both of these factual issues were undisputed. The issue before the jury was whether this withholding was malicious and whether Coward suffered any damage. This is intentional conduct by Wal-Mart and sounds in tort. See M.B.M. Co., Inc. v. Counce, 596 S.W.2d 681 (Ark.1980). Under this record and based upon the jury findings, I would affirm and reform the judgment to $410,830 being the damages occasioned by the failure to pay. Since the majority holds otherwise, I respectfully dissent.
. The majority also says: “We defer all changes in this common law rule to our Texas Supreme Court.” (citing Hancock v. Express One International, Inc., 800 S.W.2d 634 (Tex.App.—Dallas 1990, writ requested)). This court has not relied upon that maxim to avoid its responsibility in the past. See e.g. Hauck v. Sabine Pilots Service, Inc., 672 S.W.2d 322 (Tex.App.—Beaumont 1984), aff'd, 687 S.W.2d 733 (Tex.1985) (creating an exception to at will termination); *345Tidelands Automobile Club v. Walters, 699 S.W.2d 939 (Tex.App.—Beaumont 1985, writ refd n.r.e.) (recognizing the tort of intentional infliction of emotional distress); Garrard v. St. Elizabeth Hosp., 708 S.W.2d 571 (Tex.App.—Beaumont 1986), aff’d, 730 S.W.2d 649 (Tex.1987) (recognizing the tort of negligent infliction of emotional trauma in non-injury/non-death cases).