Decided October 8, 1912.
On Petition for Rehearing.
(126 Pac. 991.)
Mr. Justice Burnettdelivered the opinion of the court.
6. In the former opinion in this case we held that the circuit court erred in giving to the jury the following instructions, to which, the bill of exceptions informs us, the defendant duly excepted:
“During the progress of the trial I admitted testimony to show that the loss to the plaintiff might have been .minimized by his taking a saloon in another part of the *112city. Since that time I have been convinced that I was in error, and I now tell you to put that out of the case, and, if you come to that part of the case, you will not consider the minimizing of damages at all. It is not properly in the case. I thought it was proper when I admitted that testimony, because, if he could have gone elsewhere and minimized his damage, it would not have accrued to his damage.”
In connection with that part of the charge the bill of exceptions recites that “there was, as will more fully appear in the evidence hereto attached and hereby made a part hereof, such evidence as the court referred to specifically in the above instructions,' and also other evidence tending to the minimization of such damages.” For the first time, it is now argued by plaintiff’s petition for a rehearing that the opportunity, if any there was, which he had to procure other quarters for his business whereby he might have lessened his damage, constituted new matter which must be averred by defendant if he would urge it in mitigation of damages. Conceding this contention, and, for the purposes of this case, modifying the former opinion in that respect, and without intimating that the offer of another building would be admissible in evidence unless made at the time of or subsequent to the eviction, yet the instruction referred to erroneously goes too far, in that it directs the jury not to “consider the minimizing of damages at all.” That language was tantamount to taking from the jury the whole question of the amount of damages and directing them to find on that point according to the allegations of the complaint. The plaintiff alleged damages in certain amounts and these averments were traversed by the answer. It was possible, under the general issues thus formed, for the defendant to introduce testimony which might lessen the amount named by the plaintiff, and the circuit court has informed us that there was such evidence. Under, such circumstances, the instructions in effect told the jury that, if they came to the *113conclusion that plaintiff was entitled to any damages at all, they must find according to his estimate, not consider anything offered by the defendant tending to minimize the amount demanded by the plaintiff. It is only new matter in mitigation which must be affirmatively stated. Anything in evidence which tends to disprove even the allegation of amount of damages is yet competent under the general issues, and must be considered by the jury along with the other testimony in the case.
7. In the opinion already mentioned, we also held that the following instruction to the jury was erroneous:
“Whether or not there has been in this case shown such a state of facts as will entitle the plaintiff to recover punitive or exemplary damages is a question entirely for your determination. You will look the testimony over carefully, and, if there is any evidence in this case that justifies you in giving it, why, you give it, and in the giving of it you are only to be governed by a wise and sound discretion.”
The petition for rehearing argues thus:
“When a verdict is made up of two elements, one compensatory and the other exemplary damages, and the amount of the verdict given can be accounted for as compensatory damages, if the ruling of the court as to compensatory damages is correct, and as to exemplary damages incorrect, the court will presume that the jury followed the court’s correct instructions and found only compensatory damages.”
With the argument thus quoted as a major premise the petition lays down a minor premise, in substance, that taking from the total of $10,000, demanded in the complaint, the $3,000, asserted to be punitive damages, there would be left $7,000, whereas there was a general verdict for plaintiff for only $6,316.. This last amount, it is argued, is made up as follows:
Loss of profits.$5,333.00
Loss of rent from sub-tenants. 533.00
Damage to stock of goods. 450.00
Total $6,316.00
*114These items do not appear in the verdict, but are found only in the speculation of the petition. In the absence of a special verdict stating such items, we have no means of knowing what amount the jurymen allowed for compensatory damages or for punitive damages. Neither can we presume that they disregarded any instructions of the court, either erroneous or proper. The purpose of instructions to a jury is to influence and direct the members of that body in “their deliberations, and the presumption is that such purpose was accomplished and the instruction took effect according to its terms. Hence it is that giving an erroneous instruction operating materially against a party appealing constitutes reversible error.
3. The petition criticises the form of exception to the portion of the charge about which complaint was made. It is true, as laid down in Murray v. Murray, 6 Or. 17, and Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309), that an omnibus exception to a series of instructions, some of which are correct, will avail an appellant nothing, although others of the series are unsound. But here a separate exception was made to each specific instruction so that there is no doubt that the trial court was clearly informed about the defendant’s complaint concerning the charge.
With the modification above noted, the. former opinion will stand, and the petition for a rehearing is denied.
Reversed: Rehearing Denied.