(concurring).
I agree with the result reached by the majority, but for different reasons. Appellant’s first point of error may be subject to the criticism that it is multifarious as it complains of the action of the trial court in rendering judgment upon issues 14 and 15. However, even though this point of error may have been stated in better fashion it is still sufficiently clear to me in order to satisfy Rule 422. I do not regard it as being so unintelligible as to require rebriefing. Most of the cases cited under Rule 418 are ones in which the appellate court considered the point of error although pointing out that it was multifarious. The cases cited under Rule 418 refusing to consider a point because of such complaint, are cases in which the point of error is so general it is not possible to understand the point or points relied upon.
In this case, appellant’s first point of error complains of both issues 14 and 15 for the same reason, and that is that such findings by the jury are contrary to the weight and preponderance of the evidence because Stafford failed to establish malice. Even though issue 14 is specifically concerned with malice, issue 15 as to damages, also requires a finding of the same malice. The same evidence and argument applies to both special issues, and appellant, no doubt, felt he was making it more convenient for this court by combining these matters in the same point of error.
An additional reason for combining complaints as to the action of the trial court concerning these issues is that issue 15 was submitted conditionally upon an affirmative answer to 14.
Testing the point of error before us, in the light of the statement made by the Supreme Court of Texas in Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943) support my position. It is there said:
“The object of a ‘point’ in the brief, as provided for in Rule 418, is to call the Court’s attention to the questions raised and discussed in the brief. It is intended that the ‘point’ shall be short or in few *729words. It is not necessary that a ‘point’ be complete within itself, in the sense that it must, on its face, show that the matter complained of presents reversible error. If a ‘point’ is sufficient to direct the Court’s attention to the matter complained of, the Court will look to the ‘point’ and the statement and argument thereunder to determine the question of reversible error. Simply stated, the Court will pass on both the sufficiency and the merits of the ‘point’ in the light of the statement and argument thereunder.”
Considering the point of error in the light of the statement and argument thereunder leads me to the conclusion that this point of error should be passed upon by this court.
Applying the rules mentioned in the majority opinion, I would overrule appellant’s first point of error. I do not agree that it is necessary to prove malice in order to recover exemplary damages in a fraud case. The latest expression from the Supreme Court of Texas on this point is Clements v. Withers, 437 S.W.2d 818, 822 (Tex.Sup., 1969) in which Justice Reavley wrote:
“The existence of such malice may not be necessary in a case where the defendant’s acts are accompanied by fraud or other aggravating circumstances.”
See also Morgan v. Arnold, 441 S.W.2d 897, 905 (Dallas Tex.Civ.App., 1969, error ref., n. r. e.), wherein it is written:
“It is well settled in Texas jurisprudence, as well as generally, that fraud is one of the grounds for an award of exemplary damages. 25 C.J.S. Damages § 123(9), p. 1151; 37 C.J.S. Fraud § 144, p. 489; 26 Tex.Jur.2d, Fraud and Deceit, § 136, pp. 121-122; Connor v. Sewell, 90 Tex. 275, 38 S.W. 35 (1896). In essence it is the purpose or intention of the defendant which is determinative of his liability for exemplary damages. Jacobs, Bernheim & Co. v. Crum, 62 Tex. 401 (1884). Aggravating circumstances may authorize such exemplary damages as, in the jury’s opinion, the defendant’s conduct justifies. Graham v. Roder, 5 Tex. 141 (1849); 26 Tex.Jur.2d § 136, p. 121.
“ ‘It has been said that as a prerequisite to the recovery of the exemplary damages, it must appear that the representations forming the basis of the fraud action were false, that they were willfully made with full knowledge that they were false and with intent to injure the other party, and that the other party was injured as a result of the representations.’ 26 Tex.Jur.2d, Fraud and Deceit, § 136, p. 122.
“Evidence of willfulness on the part of the defendant may be implied from actual wrongful acts and conduct of the defendant. Jim Sanders Ford Co. v. Ontiveros, 389 S.W.2d 614 (Tex.Civ.App., Waco, 1965).”
The findings in this case, which are not under attack, establish fraud on the part of Chemical and I would affirm the judgment of the trial court.