(concurring). I join the majority opinion and write separately to summarize what I view as the key principles regarding the powers of review and reversal of the court of appeals:
*4171. The court of appeals has jurisdiction over a properly filed appeal whether or not the appellant objected to a jury instruction or other alleged error at the trial court. Cf. Hartford v. Wales, 138 Wis. 2d 508, 406 N.W.2d 426 (1987) (party’s failure to file post-verdict motions).
2. If the appellant properly objected to an instruction or other alleged error at the trial court, the appellant has preserved the issue for appellate review as of right. The general rule is that the court of appeals reviews the objected-to, allegedly erroneous matter but does not reverse a judgment unless the error constitutes prejudicial error. State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985); sec. 805.18(2), Stats. 1985-86.
3. If the appellant fails to object or improperly objects to an instruction or other alleged error at the trial court, the appellant has ordinarily waived the error and has no right to have the court of appeals review the alleged error.
4. Even if the appellant has not preserved the opportunity to have the allegedly erroneous instruction or other alleged error reviewed on appeal as of right, the court of appeals has discretion to reverse the judgment, under sec. 752.35, Stats. 1985-86, (1) if, because of the erroneous inclusion or erroneous exclusion of evidence, the real controversy has not been fully tried or (2) if, because of an error, it is probable that justice has for any reason miscarried, that is, an appellate court could conclude to a substantial degree of probability, that a new trial would produce a different result. State v. Wyss, 124 Wis. 2d 681, 735, 742, 370 N.W.2d 745 (1985).
*418In this case only the second ground under sec. 752.35 is available because this case does not involve erroneous exclusion or inclusion of evidence.1
The court of appeals in this case apparently could not conclude to a substantial degree of probability that a new trial would produce a different result. It therefore did not reverse the judgment (and review the instruction) under the second prong of sec. 752.35. The court of appeals did, however, reverse the judgment (and review the instruction), concluding that the erroneous jury instruction constituted reversible error. The majority opinion holds that the court of appeals errs when it reviews an unobjected-to, allegedly erroneous instruction and reverses a judgment without relying on sec. 752.35.
5. In exercising its power of discretionary reversal under sec. 752.35, the court of appeals must first examine the unobjected-to, allegedly erroneous instruction. The court of appeals must determine whether there would be grounds for discretionary reversal under "the relatively narrow discretionary reversal power granted be sec. 752.35,” majority opinion at pages 404-405, if the court of appeals were to find the unobjected-to instruction erroneous. If the court of appeals would exercise its discretionary power to reverse under sec. 752.35 if there was error, then it should review the unobjected-to instruction to determine if the instruc*419tion is indeed erroneous. Air Wisconsin, Inc. v. North Central Airlines, Inc., 98 Wis. 24 301, 317-18, 296 N.W.2d 749 (1980); In Interest of C.E.W., 124 Wis. 2d 47, 57, n. 6 (1985). If the court of appeals would not exercise its discretionary power to reverse under sec. 752.35 if there was error, then the court of appeals should not review the unobjected-to, allegedly erroneous instruction and reverse the judgment, even if it believes, as it believed in this case, that there was prejudicial error. Majority opinion at pages 409, 416.
In short, as I analyze sec. 752.35, the discretionary power to reverse a judgment under the statute on the basis of an allegedly erroneous but unobjected-to jury instruction necessarily includes the power to review that jury instruction. I am therefore uncomfortable when the majority opinion states without qualification that "we conclude that the court of appeals does not have power to review unobjected-to jury instructions." Majority opinion at page 416.
6. As a result of the majority opinion, the court of appeals cannot review certain errors which may affect the integrity of the trial. For the appellant to obtain relief in such a case, the appellant must come to this court, because this court has broader power to review an unobjected-to, allegedly erroneous instruction than does the court of appeals. If the unobjected-to, allegedly erroneous instruction goes to the integrity of the fact-finding process (compelling circumstances), this court may exercise its discretion to review the alleged error, even if the alleged error is one that would not move the court to reverse the judgment under its discretionary reversal power granted by sec. 751.06, this court’s counterpart to sec. 752.35. Thus in this case the court reviewed the *420unobjected-to, allegedly erroneous instruction and concluded there was no error.2
7. This court, not the court of appeals, will be the only court with the power to grant an appellant relief for an unobjected-to, allegedly erroneous instruction that does not fall within one of the two prongs of the discretionary reversal provisions of sec. 752.35. Appellants should, of course, point out the respective powers of the court of appeals and this court when seeking review in this court. As a result of the majority opinion this court should receive and grant more by-passes, petitions for review, and certifications.
For the reason set forth, I concur.
As a result of this decision, the discussion in Merrill, Lynch v. Boeck, 127 Wis. 2d 127, 141-43, 377 N.W.2d 605 (1985), of reversal in the interest of justice is probably incorrect, and counsel should be reluctant to rely on it. In that case the court reversed a judgment on the basis of the first prong of sec. 752.35, that is, the "real controversy was not fully and fairly tried,” even though the error related to the instructions and the theory of the case, not to the inclusion or exclusion of evidence.
The student author of a recent law review note analyzing the Wyss case concluded that a fairness test was not needed under secs. 751.06 and 752.35, because both the court of appeals and this court have the power, apart from sec. 752.35 and sec. 751.06, respectively, to review an alleged error that goes to the integrity of the fact-finding process. Note, State v. Wyss: A New Appellate Standard for Granting New Trials in the Interest of Justice, 1987 Wis. L. Rev. 171, 184-85. The majority opinion apparently rejects the note’s view regarding the powers of the court of appeals except to the extent that the court of appeals may review "unwaivable” issues and ineffective-assistance-of-counsel claims. Majority opinion n. 14.