Williams v. MacK Financial Corporation

ON MOTION FOR REHEARING

Earlier this term we dismissed this appeal because the transcript failed affirmatively to disclose that we had jurisdiction as the judgment shown therein did not make disposition of the case as to one of the parties, Transport Indemnity Company. Appellant later filed a supplemental transcript which, in connection with the original transcript, it now appears that we do have jurisdiction. Appellant has moved for rehearing and that we set aside our former order dismissing the appeal. The motion is well taken and our former order is set aside and the appeal reinstated. We shall now proceed to consider the appeal on its merits.

Kelley Williams alleges on appeal that the outrageous conduct of the appellees in taking such a great length of time to repair his truck caused him to suffer a great deal of mental or emotional distress. He admits that he incurred no physical injury, but feels that the jurisprudence of this State has reached a stage where damages can be awarded solely for emotional distress.

Even if we assume this to be a proper case for an award of damages for emotional distress unaccompanied by physical injury, we would be unable to reverse the lower court due to the incomplete record presented us on appeal. To obtain a reversal, the burden is on the party appealing from a trial court judgment to show that the judgment is erroneous. When the complaint is that the evidence is *319factually or legally insufficient to support vital findings, or is contrary thereto, this burden cannot be discharged by the coni' plaining party in the absence of a complete or agreed statement of facts. Englander Co., Inc. v. Kennedy, 428 S.W.2d 806 (Tex.Sup.1968); Coleman v. Pacific Employers Insurance Company, 484 S.W.2d 449 (Tex.Civ.App., Tyler, 1972, writ ref’d n.r.e.). The transcript reveals that seven depositions were filed in the trial court, but only one of them was brought upon appeal. The judgment entered in the trial court recites it duly considered the record in this cause, part of which is not made available to us. In the absence of the complete record considered by the trial court, the appellate presumption is that the omitted depositions established the propriety of the summary judgment rendered below. Torrey v. Cameron, 74 Tex. 187, 11 S.W. 1088 (1889); Alexander v. Bank of American National Trust and Savings Association, 401 S.W.2d 688 (Tex.Civ.App., Waco, 1966, writ ref’d); Rinker v. Ward, 440 S.W.2d 387 (Tex.Civ.App., El Paso, 1969, writ ref’d n.r.e.); Rey v. American Capitol Insurance Company, 450 S.W.2d 155 (Tex.Civ.App., El Paso, 1970, writ ref’d n.r.e.); Scruggs v. George A. Hormel & Company, 464 S.W.2d 730 (Tex.Civ.App., Dallas, 1971, writ ref’d n.r. e.) ; Wood v. Indiana Lumbermen’s Mutual Insurance Company, 477 S.W.2d 657 (Tex.Civ.App., Waco, 1972, writ ref’d n.r. e.) ; Joiner v. Federal Deposit Insurance Corporation, 488 S.W.2d 953 (Tex.Civ. App., Amarillo, 1972, n.w.h.).

Judgment affirmed.