concurring in the result and dissenting in part.
This case comes to us in a rather convoluted posture as the trial court and the attorneys for both parties were imprecise in their legal analysis and failed to recognize the appropriate theory of the case.
In this case Chevron, the manufacturer of Captan, the active ingredient of a fungicide, developed and marketed its product for a specific purpose — for application as a fungicide to potato seed pieces. Chevron knew that the raw chemical would not be applied to the seed pieces but rather that it would be mixed with inert ingredients which would both dilute it and serve as a carrier for spreading it upon the seed pieces.
Chevron, then, was not simply marketing a chemical compound in a vacuum but was marketing it as part of a “system” for use as a fungicide. As the majority notes, “Chevron was granted a license to produce, develop and distribute Captan under the ‘Orthocide’ trademark in the agricultural and industrial fields”. Under such licensing Chevron developed not only the chemical which was the active ingredient but also developed and made recommendations for the method of applying it to the potato seed pieces.
*841The evidence established that there was nothing defective either with the design or the manufacturer of the product. However, the evidence did establish, and the jury found, that under certain temperature and moisture conditions, the product would not only fail to provide the fungicidal protection, but would cause the seed pieces to decay and rot.
Therefore, the issue should have been whether Chevron negligently failed to warn of such adverse consequences or negligently failed to test the total “system” in varying field conditions of temperature and moisture.
Mortensen’s initial pleading included causes of action for failure to warn and for negligence. The trial court granted Chevron’s motion for a directed verdict at the close of Mortensen’s case on the grounds of negligence, gross negligence, fraud, and strict liability based upon failure to warn. Mortensen did not appeal that ruling and therefore is precluded from achieving relief on this appeal.
The trial court submitted the case to the jury instructing on the theory of defective design. Although this is not a defective design case, the jury may have reached the right result based on the evidence, the instructions notwithstanding.
I disagree with the majority when it attempts to exonerate Chevron by erroneously asserting that it merely produced and marketed a chemical for use in a vacuum. The fact is that Chevron markets its product for use as part of a “system.” For years it has followed its products in the field through contracts with agricultural experiment stations and observation of actual farm applications. For the majority to premise its ruling in this case upon the understanding that the manufacture and marketing of only Vs of the system is attributable to Chevron is to be blind to what takes place in the real world of developing, testing, marketing, and applying agricultural products.
The majority cites Farmer v. International Harvester, 97 Idaho 742, 553 P.2d 1306 (1976) for the proposition that the plaintiff’s case failed because it presented only circumstantial evidence of a “defective condition” and that it did not exclude the possibility of other “reasonably likely causes”. From that premise the majority concludes that Dr. Douglas’ testimony that the product, under the climatic conditions prevailing, inhibited the suberization of the seed pieces was not proof of the cause of the failure of the seed pieces. Certainly that testimony was totally proper and the jury’s findings, consistent with that testimony, necessarily ruled out other possible causes. This Court should not overturn a jury’s finding of fact which is based upon substantial competent evidence.
While I object to the reasoning of the majority opinion and statement of law expressed therein, I must concur in the result for the reasons previously stated.