concurring with comment.
I concur in all of the opinion authored by Justice Johnson, other than the last two *596paragraphs of Part II, which attempt to find a distinction between the instant case and Hilden v. Ball, 117 Idaho 314, 787 P.2d 1122 (1989). In my view that distinction cannot be drawn, and, moreover, it has not been drawn. It is true, as pointed out by Justice Johnson, that the final opinion for the Court in Hilden did state, and I quote directly from it:
[E]ven assuming that the ‘but for’ causation language of IDJI 230 is inappropriate in a multiple ‘force’ or cause case, after reviewing the record of the trial proceedings up to the date of the instruction conference, and giving deference to the trial judge who presided over all the proceedings, we cannot conclude that the trial court erred in viewing this as a single force’ or cause case, and therefore there is no basis for the appellant’s claim. First, there was only a single defendant, Dr. Ball, on trial for negligence, and no other doctor or health care provider was mentioned in any of the evidence as having been guilty of negligence which caused or contributed to the death of Mr. Hilden.
Id., 117 Idaho at 335, 785 P.2d at 1143 (emphasis added, footnote omitted).
My response to that at that time was readily delivered:
In today’s opinion for the Court, Chief Justice Bakes assumes that the ‘but for’ causation language is inappropriate in a multiple cause case, but by ‘giving deference to the trial judge who presided ... we cannot conclude that the trial court erred____’ [citation omitted]. All trial judges are entitled to deference simply because they are trial judges. My opinion now is and has been that this particular trial judge is one of the finest, but I will not be the second to say that any judge is not beyond committing error. Nothing would be more gratifying to me, and certainly to the plaintiffs as well, than that the six justices who have joined Chief Justice Bakes on now two occasions would also join him again in an opinion which at the least allows Judge Granata to reconsider his ruling, as we just did this past week in Heitz v. Carroll, 117 Idaho 373, 788 P.2d 188 (1990), or better yet, ask him to preside over a second trial, which to my mind was the better course of action suggested in our Heitz opinions.
[I]t just might bring about a change of two votes to remind the other members of the Court that the district judge, of a necessity, had to have been aware of two causes for Robert Hilden’s wholly unexpected, sudden and tragic demise. Otherwise, how could Judge Granata have written, as he most definitely did in denying plaintiff’s motion for j.n.o.v. and for new trial:
The fact that the plaintiff has the burden of proving that a defendant’s negligence was a substantial factor in causing damage to the plaintiff does not excuse the plaintiff from proving that the injury [death] would not have occurred “but for” the defendant’s negligence. Instruction No. 4 is also consistent with revised IDJI 230 (Rev. 7/87). The plaintiffs presented evidence that Dr. Ball’s failure to preoxygenate was the actual cause of Mr. Hilden’s death, but Dr. Ball presented evidence that Mr. Hilden would have died anyway. Thus, it was necessary for the jury to be instructed on all aspects of proximate cause, including the so-called “but for” portion of the instruction.
R. 208 (emphasis added; footnote omitted). The jury was in that manner directed to find for Dr. Ball unless it could find from the evidence that, notwithstanding the proof of causative negligence on the part of Dr. Ball, the plaintiff also had to prove a negative, namely, that Hilden would not have died anyway. This is an absurdity. This is especially so when not one of four experienced justices can find any support for Judge Granata’s statement that Hilden was going to die anyway. This case and Instruction No. 4 may well stand as the most outstanding tragic travesty in the annals of Idaho civil jurisprudence.
Where the district court has ruled that the defense presented evidence that Robert Hilden would have died anyway, *597which can only mean that he would have expired even had he been preoxygenated, there necessarily had to exist in the trial court’s mind another cause, a second contributing cause. Those in the majority have expressed no concern as to this second cause. Hilden had not checked in to a mortuary with the purpose in mind of dying. He did not know he was going to die. The surgeon who was present and about to do surgery on him had not yet laid a knife on Hilden. But, he did die. The only evidence in the record is that it was a routine operation, that Hilden was overweight (which appears to have been for him a near normal condition), and that by reason thereof the two physicians had agreed upon positioning him so that he would suffer less discomfort.
Somewhere in the record there must be this other cause (or ‘force’ as so termed by Chief Justice Bakes) — and something in the evidence presented by Dr. Ball pointed to it. If there is no such other cause to which the district court can point, and his opinion pointed to none, then it stands to reason that there is no support for the assertion that Hilden would have died anyway. Under these circumstances it would be a happy day for the science of Idaho jurisprudence if the plaintiffs were granted the new trial which they are clearly entitled to have. I would be the first to recommend that it be tried with the same judge presiding. Simply stated, the trial judge’s reading brought him into contact with the ‘but for’ instruction which the Court of Appeals initiated, and the trial judge thought it fit the facts of this case as is evident from his own opinion. There is no guarantee that mistakes will not be made. My confidence in the district judge is such that I find it shameful that he is not given the opportunity to rule again on plaintiff’s motion.
Hilden, 117 Idaho at 341-42, 787 P.2d at 1149-50 (emphasis in original and added; footnote omitted). To that earlier response, it needs to be kept well in mind that the instruction submitted by Hilden’s counsel did not utilize any “but for” language, but was this, and nothing more:
This second majority opinion clears up the impression (left by the first opinion), that the plaintiffs were guilty of requesting Instruction No. 4, the instruction which obviously deprived them of any chance of recovery. As my earlier opinion shows, and the now changed majority opinion confirms, plaintiffs were not responsible for the erroneously damaging language in Instruction No. 4. The plaintiffs had requested only the first paragraph, which was:
‘When I use the expression “proximate cause,” I mean a cause which, in natural or probable sequence, produced the damage complained of. It need not be the only cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes damages.’
The majority’s failure to earlier comprehend that only this much of Instruction No. 4 was asked for by plaintiffs undoubtedly has flavored the majority’s thinking in both of its opinions. The instruction as requested by the plaintiffs was not invented for the Hilden-Ball controversy, but rather comes of good ancestry, and is a time-tested instruction. Under fire still, and probably forevermore, is the district court’s addition of the “but for” second paragraph to Instruction No. 4.:4
For an act or omission by a defendant to be a proximate cause of a plaintiff’s damages, you must find that the plaintiff’s damages would not have occurred but for that act or omission, and that such act or omission was a substantial factor in causing the damages.
An act or omission is not a proximate cause of a plaintiff’s damages if the damages would have occurred without such act or omission.
(Emphasis added.)
*598Hilden, 117 Idaho at 338-39, 787 P.2d at 1146-47 (emphasis in original).
Although it is now too late to rectify the injustice done by this Court to Bob Hilden’s family, my brethren do a service to the law by holding the “but for” instruction was improperly given in today’s case of Fussell v. St. Clair.
. Perusal of the clerk’s record shows that the defendant did not request any instruction on proximate cause. The "but for" clause was not attributable to the defendant. When plaintiffs filed their post-judgment motions, the defendants filed objection thereto and offered a de*598fense for the court’s giving of the "but for” instruction: "Likewise, Instruction No. 4 is a proper statement of the law in Idaho concerning proximate cause, and the Court did not err in providing the jury with that instruction.” R., 214. Defendant did submit a special verdict form which gave clear recognition to the issue being whether defendant was negligent and whether that negligence was a proximate cause of Robert Hilden’s death. It also provides for apportioning percentages of fault to the doctor and to Hilden. As this dissent discusses, exactly how Hilden was in any way the cause of his own death will forever remain one of the great unsolved mysteries of the world.