(dissenting). The jury in this case returned the following verdict:
“We, the jury, duly impaneled to try the above-entitled cause, find for the plaintiff and against the defendant in the sum of $5,000, general damages, and $50, special damages.”
Judgment was entered in favor of the plaintiff, based on this verdict, for $5,050.
In submitting to the jury the question of whether the plaintiff had been specially damaged by loss of business, the trial court committed error. That error, however, does not necessitate or even warrant reversing the judgment and remanding the cause for a new trial, with consequent delay and added expense. It can be cured by deducting from the amount of the judgment the $50 awarded as special damages and affirming the .judgment as so modified. And this should be done, pursuant to § 3 of article VII of the Oregon constitution, which provides in part as follows:
“. . . or if, in any respect, the judgment appealed from should be changed, and the supreme court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the supreme court; . . .”
The object sought to be accomplished by the amendment of article VII in 1910 was, in the language of the sponsors of the amendment, “to simplify procedure on appeals to the supreme court and remove the pretext for new trials in those cases in which substantial justice is done by the verdict and judgment, but in which the trial court may have made a technical mistake ; or if the verdict is just and the judgment is not, *663to make it the duty of the supreme court to enter the proper judgment, if that can be done, instead of sending the case back for a new trial”: Statement, Voters’ Pamphlet, 1910, page 177.
But it is insisted by the defendant that it is impossible for this court to say what judgment should have been entered in the circuit court, inasmuch as it has no way of ascertaining how much of the $5,000 awarded by the jury as general damages was mistakenly intended by it as damages for loss of plaintiff’s business. To bolster up this contention the defendant directs attention to the following statement made by the trial court in explaining to the jury the issues in the case:
“Now, the plaintiff claims that by reason of the publication of this article he has been damaged in his business and in his personal comfort in the sum of $15,000.00; that his business has been damaged in the sum of $2,500.00.”
It will be observed that the court, in the excerpt above quoted, used the word “business” twice, the first time, apparently, intending to say “reputation”. The mention of “business” in connection with damages of $15,000 was not noticed by counsel, or at least the trial court’s attention was not directed to the use of that word in relation to general damages. Had this inadvertence or inaccuracy been noticed at the time by counsel for the respective parties and considered of any consequence, it undoubtedly would have been called to the court’s attention, by counsel for the plaintiff because it omitted the principal claim of damages, that is, for injury to reputation, and by counsel for the defendant because of the special finding in the form of verdict submitted to the jury.
*664There are other and persuasive reasons to believe that the jury was not so confused and befuddled that it did not know and appreciate the difference between general and special damages. In compliance with § 5-312, O. C. L. A., the jury, when it retired for deliberation, took with it the pleadings in the case. There can be no doubt that the jury must have understood why the pleadings were taken to the jury room, in view of the explanation by the trial court, as follows:
“Now, these papers [the pleadings] that the parties themselves have lodged with the court and with you are not evidence; they are the claims of the parties. You will have them with you in the jury room. They are sent to you there for the purpose, if you be at a loss to know what the issues of fact are, and the issues of fact is your sole concern, you can resort to these papers. They are sworn to, it is true, but nothing therein contained can be by you used as supporting or even tending to support any fact necessary to be established in the case.”
In paragraph VIII of the amended complaint the plaintiff alleged:
“That by means of the said publication, as herein set forth, this plaintiff has been greatly injured in his reputation and credit; he has been caused mental pain and suffering, embarrassment and humiliation; plaintiff’s health has been impaired and plaintiff has been rendered nervous, so that he has lost sleep, and plaintiff has been generally damaged in the sum of $15,000.00.”
And in paragraph IX of the same pleading the plaintiff, after setting forth loss of business, stated:
“. . . . That plaintiff believes and therefore alleges, that by reason of the said publication, as herein-before set forth, this plaintiff’s business, and therefore this plaintiff, have been specially damaged by *665loss of trade, good will, and otherwise, in a sum not less than $2,500.00.”
In the prayer, the plaintiff “demands judgment against the defendant for the sum of $15,000.00, general damages, and the sum of $2,500.00, special damages, and for the costs and disbursements of this action.”
There is nothing involved or complicated in the allegations of the amended complaint. Had the jury been at a loss to understand the distinction between general and special damages, the amended complaint would have clearly informed it of the basis of each such demand. Furthermore, the jury was present during the discussion of the defendant’s oral request “that the jury be instructed that there has not been sufficient proof to establish any money loss or injury to plaintiff’s business, and therefore no basis for the allowance of special damages.”
In the majority opinion it is stated that there is nothing in the record which indicates that the jury glanced at the pleadings. That also could be said generally of exhibits introduced in evidence. In many instances the exhibits are much more voluminous and complicated than the pleadings in this case. We must presume that the jury, composed of “the most competent of the permanent citizens of the county” (§5, article VII, Oregon constitution), could and did, with the record before it, understand the difference between general and special damages as applied to the facts in this case.
The trial of the case was concluded in less than a day. The only question for the jury to decide was the amount of damages to which the plaintiff was entitled by reason of the defendant’s publishing the libelous article. When the attorney for the plaintiff had com*666pleted Ms opening argument, counsel for the defendant stated: “We will submit the matter to the jury without argument. The thing is fresh in their minds. I don’t think I can add anything, your Honor.”
On conclusion of the instructions the following colloquy occurred:
“The court [to the jury]: * * * You will be provided with two forms of verdict . . .
‘ ‘ Mr. Hart [counsel for defendant]: You only need one form, in view of the fact that some damages will be awarded.
‘ ‘ The court: Yes, I understand, but have you got it ready?
“Mr. Sayre [counsel for plaintiff]: If the court please, I prepared a form of verdict at the office and then forgot to bring it, but I have just written one out wMch I will hand you [handing paper to the court].
“The court: Do you have any exception to this, Mr. Hart?
“ [Mr. Hart examined the form of verdict referred to.]
“Mr. Hart: No, except my . . .
“The court: Yes. An exception will be allowed to the refusal of the court to give any of the requests submitted or any modification of them.
“Mr. Hart: I am afraid I confused what I asked of your Honor because the typewritten instruction, requested instruction I passed up was drawn before the testimony was closed, and it included the reference to credit, so that ...
“The court: Yes. Well, as I understand there is nothing claimed in the complaint for credit, loss of credit.
‘ ‘ Mr. Hart: Yes, there is, your Honor, loss of reputation and credit, and in one of the instructions that you gave there is that reference to it.”
The court, after being assured by counsel for both litigants that there was no evidence in the record as *667to the effect of the publication on the credit of the plaintiff, instructed the jury to “disregard the question of credit.”
This court has so frequently held that it is only error properly excepted to that will be reviewed on appeal, that citation of authorities is unnecessary. It is also a familiar rule of appellate procedure that the failure of the trial court to give instructions on particular matters is not ground for reversal in the absence of a request therefor made. In Burgess v. Charles A. Wing Agency, 139 Or. 614, 11 P. (2d) 811, the defendant contended that the court’s instructions did not specify in sufficient detail the issues to be decided by the jury. In answering that argument this court observed:
“If the defendants believed that the instructions given were not sufficient they should have made their wishes known by some application to the circuit court. In the absence of such application and an unfavorable ruling, no premise was supplied for action by this court: State v. Hay, 132 Or. 223 (283 P. 753); State v. Jennings, 131 Or. 455 (282 P. 560). This is a court of review. The principle of procedure just mentioned found application in Thomas v. Smith-Wagoner Co., 114 Or. 69 (234 P. 814), wherein the appellant, like those now before us, attempted to predicate error upon the alleged failure of the court to give certain instructions which he did not request until he had reached this court. This court declined to consider them. It follows that this assignment of error presents no merit.”
See also, in this connection, 2 Oregon Digest, “Appeal and Error”, § 216 and authorities thereunder cited.
Substantial justice would be done by eliminating the amount found by the jury as damages for loss of *668business and affirming the judgment as to general damages. The practically nominal sum awarded as special damages indicates that the jury believed that the injury to plaintiff’s business was slight, and negatives the defendant’s contention that the award for general damages was increased by including therein an allowance for special damages for injury to plaintiff’s business. There is nothing in the record to indicate that the jury probably or even possibly had in mind any loss of business suffered by the plaintiff, in assessing the amount of general damages to be awarded him. Therefore, there is no reason why the amount found by the jury as general damages should be disturbed.
This court in Lane v. Schilling, 130 Or. 119, 279 P. 267, 65 A. L. R. 1042, held that the plaintiff therein could not recover against the receiver of a bank punitive damages for libelous statements made by the president of the bank before the bank became insolvent and a receiver thereof was appointed. The verdict did not indicate how much had been awarded as general and how much as punitive damages, and for that reason the court, in holding that the question of punitive damages was erroneously submitted to the jury, on appeal reconsidered the evidence and entered judgment for the amount of general damages to which it believed the plaintiff entitled.
In Martin v. Cambas, 134 Or. 257, 293 P. 601, the plaintiff instituted an action against five defendants, as to one of whom nonsuit was granted, to recover compensatory and exemplary damages for false arrest and imprisonment. The verdict of the jury was as follows:
“We, the jury, duly empaneled to try the above-entitled cause, find our verdict for the plaintiff and *669against the defendants as follows: against F. W. Cambas, John H. Cart, Wm. Brier the sum of $250 apiece for punitive damages and assess plaintiff’s general damages in the sum of $5,000 against Wm. J. Blake and assess punitive damages in the sum of $9,250 against Wm. J. Blake. All costs to be prorated against defendants.”
Judgment was entered on the verdict in favor of the plaintiff, against the defendants therein named. On appeal, this court, after holding that punitive damages should not have been allowed, observed:
“In the present ease the measure of damages against the defendant William J. Blake is such as will constitute a just and reasonable compensation for damages caused by the illegal arrest. Tins amount the jury fixed under the evidence at $5,000. That part of the verdict assessing and apportioning punitive damages should be treated as surplusage and deleted.
“ ‘Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them. Thus, if the verdict finds the issue and something more, the latter part of the finding will be rejected as surplusage, and judgment rendered independently of the unnecessary matter, there being nothing to show the jury reasoned falsely’: 38 Cyc. 1890.”
The court then referred to and quoted from article VII, § 3, of the constitution, and stated that the judgment should be corrected and one entered on the verdict in favor of the plaintiff and against the defendant Blake in the sum of $5,000. The opinion ends with this language:
“The judgment of the circuit court will be corrected, by eliminating all that part thereof for punitive damages, and affirmed as to general damages in favor of plaintiff and against defendant William J. Blake in the sum of $5,000.”
*670The supreme court of Vermont, in Mazzolini v. Gifford, 90 Vt. 352, 98 A. 904, held that the plaintiff was not entitled to exemplary damages and affirmed the judgment for general damages. In disposing of this matter the court therein stated:
“The jury assessed the plaintiff’s damages at $650? and it appeared, by an answer of the jury to a special interrogatory, that of the damages assessed by them $100 was assessed as exemplary damages. We think that to the extent of the exemplary damages the verdict was vitiated. There was not only no ‘direct evidence’ that other stores were kept open, but there was no evidence of such fact. Offers to show such fact were excluded.
“There was nothing in that respect to be considered in any way, and the matter was so left that the jury probably, and it may be said apparently, acted upon the theory that there was indirect evidence of discrimination against the plaintiff proper to be considered on the question of exemplary damages. However, we do not send the case back for another trial upon the question of exemplary damages. In consequence of the error which intervened in the matter of exemplary damages, we eliminate the amount of such damages from the judgment.”
See also Cole v. Christenson, 163 Wis. 409, 158 N. W. 56, wherein compensatory and punitive damages were separately assessed and the appellate court modified the judgment because of the improper inclusion therein of punitive damages, reasoning thus: “Inasmuch, however, as those [punitive] damages are separately assessed, the error may be corrected by now disallowing them”, while affirming the award of compensatory damages.
Because of the error of the circuit court in submitting to the jury the matter of special damages for loss of business, the judgment appealed from should *671be modified by eliminating the $50 awarded as special damages. To reverse the judgment of the circuit court and remand the cause for a new trial, as the record stands, on the mere supposition that the jury, in filling out the form of verdict submitted to it, may not have understood the difference between general and special damages and may possibly have included under general damages some amount of money intended as special damages, is, in my opinion, unwarranted and in contravention of § 3 of article VII. In any view of the matter, we must accredit the jurors with ordinary intelligence and at least average discernment. See Erickson’s Dairy Products Co. v. Northwest Baker Ice Machine Co., 165 Or. 553, 109 P. (2d) 53, and Erdman v. Inman, 165 Or. 590, 109 P. (2d) 593. “Appellate courts should be slow to impute to juries a disregard of their duties, and to trial judges a want of diligence or perspicacity in appraising the jury’s conduct”: Fairmount Glass Works v. Cub Fork Coal Co., 287 U. S. 474, 485, 53 S. Ct. 252, 255, 77 L. Ed. 439, 445.
For the reasons hereinabove expressed, I dissent.
Kelly, C. J., concurs.