(concurring).
I concur in the affirmation of this case only because the defendant (our appellant) has not discharged the burden placed upon him by the doctrine enunciated in The Englander Company v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968): “The burden is upon a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal.”
The trial court’s judgment rested upon two findings of negligence proximately causing the injury and damage: (a) failure to remove the beans and water from the floor and (b) failure to warn of the presence of the beans and the water on the floor. Defendant has attacked only the first and has no points directed at the second prong of the award. With a judgment resting upon two distinct findings of negligence, any error relating to the one challenged is immaterial as a matter of law. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 165 (1957); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407, 410 (1943); Louisiana & A. Ry. Co. v. Chapin, 225 S.W.2d 614, 615 (Tex.Civ.App.-Texarkana 1949, writ ref’d). See also, 4 Tex.Jur.2d Rev., Part 2, Appeal & Error § 867, at 503, 513 (1974).
While the courts are committed to a liberal construction of the briefing rules, heretofore it has been generally conceded that points of error are an indispensable part of every appellate brief. See, e. g., Wagley v. Fambrough, 163 S.W.2d 1072, 1074 (Tex.Civ.App.-Eastland, 1942), affirmed, 140 Tex. 577, 169 S.W.2d 478 (1943); Rossi v. Johnson, 355 S.W.2d 582, 583 (Tex.Civ.App.-San Antonio, 1962, no *485writ). In this instance, the majority has created its own phantom point which is promptly overruled after it has conducted its own independent examination of the record. I submit that this is impermissible. Isenhower v. Bell, 365 S.W.2d 354, 358 (Tex.1963).
Points not urged upon a court of civil appeals by an appellant cannot form the basis of its judgment. State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353, 354 (Tex.1971). Having failed to present a point with reference to a failure to warn, defendant waived and abandoned its right to complain thereof. Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.1966).
Thus, I do not subscribe to that portion of the opinion which discusses the law and the facts with reference to the failure to warn. There being no challenge to the judgment on that score, such comments constitute obiter dictum. Nevertheless, on the record presented to this court, I am obliged to join in the affirmation of the judgment.