(dissenting in part): I must differ from my associates on the rule of practice stated in syllabus 2 and treated in the opinion. My view is this: There is but one time in the trial of a case to a jury when it is important that the instructions be correct, and that is when they are read to the jury. Assuming, as we must, that both the court and counsel for the litigants desire controverted issues submitted to the jury to be determined in accordance with correct principles of law applicable to them, they should, in their respective positions, endeavor to have the instructions so framed that this can be done. The pertinent statute (R. S. 60-2909) provides, in substance, that the court shall give general instructions to the jury on the issues to be determined by them; that if counsel desire special instructions to be given they should be requested, and that before reading the instructions to the jury the court shall, when requested, “submit the same to counsel on either side and give counsel a reasonable time to suggest modifications thereof.” I think the statute is designed to carry out the view above expressed. I am well aware that the provisions of our old code for the taking and preserving of exceptions by bills of exceptions were omitted from our revised code, and that it is no longer necessary to preserve such exceptions with respect to instructions, or any other adverse ruling of the court. (Cobe v. Coughlin, 83 Kan. 522, 111 Pac. 458.) It is enough to show that a particular matter has been *707called to the attention of the court and that an adverse ruling has been made thereon. That is true, generally speaking, with respect to rulings arising on pleadings, or on the introduction or exclusion of evidence, and there is no reason why it should not be true with respect to the giving of instructions. The statute clearly contemplates that if counsel for the parties are not satisfied with the instructions as finally prepared by the court they shall request modifications of them. To my mind an instruction needs modification if it contains a phrase or sentence placing too strong a burden on one of the parties to the action, just as much as if it omitted a phrase or sentence necessary to a full and correct statement of the principle of law involved, and that it may be erroneous for either reason. My view is that to predicate error on instructions given the record should show that the party complaining had requested an instruction differing in substance from that given, which was refused, or that he had objected to the instructions as given, which objections were overruled, or that he had moved for a modification of the instructions, which motion was denied- or that in some other appropriate way he had presented to the tria* court the question which he urges in this court and had an adverse ruling thereon. It is only by some method of this kind that it can be said that the ■court’s attention was challenged to the matter. I realize that the ■decisions of the court heretofore have not been very definite on this matter. In addition to the cases cited in the opinion, see: Rapier v. Bank, 105 Kan. 606, 607, 185 Pac. 888; Bank v. Amend, 107 Kan. 25, 27, 190 Pac. 739; Koshka v. Railroad Co., 114 Kan. 126, 217 Pac. 293; Williams v. Anderson, 122 Kan. 373, 251 Pac. 1084; Kopka Bros. Merc. Co. v. California Canneries Ass’n, 122 Kan. 451, 251 Pac. 1077; Schmitz v. Schmitz, 125 Kan. 115, 263 Pac. 1045; Rowley v. Cosens, 125 Kan. 431, 264 Pac. 1036; Johnson v. Salkeld, 126 Kan. 807, 811, 271 Pac. 385.
A party is not permitted to bury an error in generalities. (Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998; Collis v. Kraft, 118 Kan. 531, 235 Pac. 862; State v. Bell, 121 Kan. 866, 870, 250 Pac. 281; Koury v. Rapalino, 124 Kan. 582, 261 Pac. 578.) Other cases might be cited.
Diligent counsel will have investigated the law pertaining to controverted issues raised by pleadings that are to be presented to the jury. There is no reason why they should not aid the court in preparing the instructions so they state the law correctly. It should *708not be regarded as ¡a time in the trial for the laying of a secret trap. I would not go so far as the holding in Skaer v. American Nat’l Bank, 126 Kan. 538, 540, 268 Pac. 801, which in effect was that not only requested instructions, but requested modification of instructions, should be in writing and in proper form. That opinion was set aside on the rehearing in that case (127 Kan. 682, 275 Pac. 185). I think the view herein expressed is not only a correct interpretation of our statute, but that it would aid the prompt and efficient administration of justice. Take this case for example — a substantial sum involved, an expensive trial. Our opinion here would end the litigation were it not for the improper instruction. Had the court’s attention been called to the phrases objected to on this appeal, no doubt they would have been stricken out. If not, the ruling would clearly have been error. Now the case must go back to the trial court for the delay and expense of another trial, and perhaps another appeal, with the expense and delay necessary thereto, before the rights of the parties to this cause can be finally determined.