specially concurring.
In a dissenting opinion in Flansberg v. Paulson, 239 Or 610, 618, 399 P2d 356 (1965), I urged that the rule invalidating a verdict assessing only special damages be repudiated. Some but not all of what was said in that dissent was accepted in Saum v. Bonar, 258 Or 532, 484 P2d 294 (1971) and as a result this court fashioned a new rule which recognized the validity of a verdict allowing only special damages in some cases but not in others.
The majority opinion in the present case traces the sad story of confusion which has ensued in an effort to follow the Saum rule. The refinements and fine distinctions made in these cases remind one of the ancient discourses on the number of angels that could dance on the point of a needle. This effort might be applauded if it were for a profitable end, hut this is not the case. The entire exercise is deemed necessary by the court simply because it starts with an erroneous premise that, for some reason or other, the jury should not be permitted to measure plaintiff’s right to recover for his entire loss by assessing only the amount of the so-called special damages. I have set out at length in my dissent in Flansberg v. Paulson, supra, my reasons for permitting the jury to make such an award. I should have added there that the common inclination of juries to award special damages only (as demons- • trated by the many cases in which they have done so) might well have been prompted by an effort to adjust the measure of recovery to the comparative fault of the parties (without finding plaintiff contributorily negli*470gent and therefore completely barred under the old rule).
Having failed in my effort to convince the court of the advisability of repudiating the rule adopted in Saum v. Bonar, supra, I urge the legislature to enact a statute which will do so.
Denecke, C. J., concurs in this opinion.