concurring and dissenting.
Otherwise agreeing with the majority’s disposition of this appeal, I respectfully dis*793sent to the award of exemplary damages. It is my view that, under the circumstances of this cause, J. Darrell Brogdon waived his ground of recovery for exemplary damages.
An unlawful or wrongful act is not of itself ground for an award of exemplary damages; to warrant exemplary damages the unlawful or wrongful act must partake of a wanton and malicious nature.1 Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803, 805 (Tex.1966); Ware v. Paxton, 359 S.W.2d 897, 899 (Tex.1962). Accordingly, while the wrongful suing out and levy of a writ of sequestration subjects the wrongdoer to actual damages, exemplary damages can be awarded only if the action is malicious. Harris & Fox v. Finberg, 46 Tex. 79, 96 (1876).
Conformably, a finding that the act was either malicious or willfully done is essential to a recovery of exemplary damages. Holland v. Lesesne, 350 S.W.2d 859, 865 (Tex.Civ.App.-San Antonio 1961, writ ref’d n. r. e.). To this extent, the ground of recovery is an independent one which, unless conclusively established, is waived where, as here, the issue on malice is omitted without objection from the jury submission, Scurlock Oil Company v. Joffrion, 390 S.W.2d 526, 532 (Tex.Civ.App.-Tyler 1965, no writ), even though, as here, the jury fixes an amount for exemplary damages.2 Holland v. Lesesne, supra, at 865.
The jury’s verdict is a mere finding that Robert E. Barfield wrongfully caused the writ of sequestration to be issued and executed, not that Barfield maliciously or willfully did so. Respectable authority holds it to be elementary that the finding that the issuance and execution was wrongful is not a finding that it was done with malicious intent or willfully done to injure. Mathes v. Williams, 134 S.W.2d 853, 858 (Tex.Civ.App.-Amarillo 1939, no writ). This presents a situation far different, I submit, than the situation illustrated by Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.1964), where there was a defective submission of the controlling issue without objection. My appraisal of the record before us is that no issue on the malicious or willful nature of the act was requested or submitted, even incompletely or defectively, and as a result, Brogdon waived his independent ground of recovery. Rule 279, Texas Rules of Civil Procedure.
Thus, I cannot agree that Barfield waived his right to complain of the award of exemplary damages by failing to object to the charge for the omission of the malice issue. To recover exemplary damages, it was Brogdon’s burden, not Barfield’s, to request, on penalty of waiver, the submission of the proper issue(s). Scurlock Oil Company v. Joffrion, supra, at 532; Holland v. Lesesne, supra, at 865; both citing Rule 279, T.R.C.P. Barfield had no duty to present any issue essential to Brogdon’s recovery and, therefore, no waiver can be imputed to Barfield for Brogdon’s failure to request the proper submission, Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85 (1940), or for Barfield’s failure to object to the omission. Long v. City of Austin, 265 S.W.2d 632, 637 (Tex.Civ.App.-Austin 1954, no writ).
I, therefore, would hold that Brogdon waived any recovery for exemplary dam*794ages and order that the trial court’s judgment be reformed to eliminate the recovery of exemplary damages.
ADDENDUM TO OPINION
ROBINSON, Chief Justice.Appellees timely made the suggested re-mittitur by filing on January 13, 1978, a release of $2,000.00 of the judgment entered by the trial court. We order that the costs of this appeal be taxed against appellant. Rules 435 and 448, Texas Rules of Civil Procedure.
The judgment is accordingly modified and as modified is affirmed.
. Definitions of malice are necessarily general and do not provide precise limits for the decision of cases. Ware v. Paxton, 359 S.W.2d 897, 899 (Tex.1962).
. The peculiarly worded damage issue submitted in this cause is not “necessarily referable” to the independent ground of recovery to the extent that it is a submission of one of the elements so that, under authority of Rule 279, Texas Rules of Civil Procedure, a court finding on the omitted issue of malice is deemed to have been made in support of the judgment rendered. Even generally, the purpose of a damage issue is not to establish liability, but to fix the amount of monetary compensation to which the aggrieved party shows himself entitled; therefore, whether there is any legal liability on the part of the wrongdoer must be determined, unless conclusively established, through the submission of the proper, separate issue(s). But here, the damage issue inquires of the amount of exemplary damages for the wrongful sequestration of the lawn mower. As stated in the text, exemplary damages cannot be awarded for a wrongful act. Consequently, the damage issue, as worded, simply goes to the remedy for, and is separate and apart from, the independent ground of recovery for malice.