Dempsey v. McKennell

• Decision Date: 09 February 1893
• Citation: 23 S.W. 525
• Parties: DEMPSEY v. McKENNELL.
• Court: Texas Court of Appeals

23 S.W. 525

DEMPSEY v. McKENNELL.

Court of Civil Appeals of Texas.

February 9, 1893.

Appeal from Jackson county court; Hugh L. White, Judge.

Action by R. K. McKennell against Daniel Dempsey for personal services. From a judgment for plaintiff, defendant appeals. Affirmed.

A. B. Peticolas, for appellant. W. A. McDowell, for appellee.

WILLIAMS, J.

The judgment in this cause was affirmed by the court of appeals at its last term at this place, and on motion of appellant a new hearing was granted, and the cause comes to this court for disposition. There are two questions presented, viz.: First, is the amount sued for and recovered below due as current wages for personal services? and, second, if it is, can it be offset by a debt due to appellant from appellee, which is in no way connected with it. The facts are that appellant employed appellee to nurse him during an attack of sickness, promising to pay him well for his services. There was no agreement fixing the compensation to be paid, either for the entire service, or by the hour, day, week, or month. Appellant, before the present suit was brought, but after the controversy arose, procured an assignment from one Mrs. Harrison of a debt which appellee owed her for board, and pleaded it as a set-off when sued by appellee. The court below held that the sum due appellee was for current wages for personal services, and could not be offset as attempted. The meaning of the language "current wages for personal services" was considered by the court of appeals in Bank v. Graham, 22 S. W. Rep. 1101, and the terms were defined as follows: "`Current' means `running; now passing or present in its progress.' `Wages' means a `compensation given to a hired person for his services.' Current wages are such compensation for personal services as are to be paid periodically, or from time to time, as the services are rendered; as when the services are to be paid for by the hour, day, week, month, or year. The services rendered must be such as that the compensation therefor is measured by the time of the continuance of the service." It was held that the fee of an attorney is not exempt from garnishment "where he has not been hired for his services by the day, week, month, or year, to be paid at the expiration of the time for which he was hired, and not in proportion to the business done." In the case of Sydnor v. City of Galveston, (Tex. App.) 15 S. W. Rep. 202, the same court held that the fees of a physician, where he was employed, and his compensation fixed, per diem, were exempt. See, also, Bell v. Live-Stock Co., (Tex. Sup.) 11 S. W. Rep. 344, in which the meaning of "current wages" is discussed, but not authoritatively decided. The difference between the first case and this seems to be that in the former an attorney was employed at a compensation fixed for given services, without regard to time, while here no compensation was agreed on, but the amount appellee should receive necessarily depended upon the length of time he served. The mere circumstance that the rate of compensation is not agreed on in advance...