dissenting.
Mention need be made of this Court’s opinion in State Tax Commission v. Railbox Co., 116 Idaho 909, 782 P.2d 32 (1989). The Court’s opinion stated: “We note at the outset that the Tax Commission has submitted no authority for the proposition that it may disregard its own regulation.” 116 Idaho at 910, 782 P.2d at 33. In its petition for rehearing, the Tax Commission challenged the validity of that statement. The challenge was well-taken. The Tax Commission’s initial brief had cited K-Mart Corp. v. Idaho State Tax Com’n., 111 Idaho 719, 727 P.2d 1147 (1986), and relied heavily upon that case. On the critical point involved in Railbox, the cases were on a par. Railbox's supporting brief pointed to the Court’s error — not just error, but a bold misstatement concerning which fourteen pages were written on denial of petition for rehearing — all to no avail. Beyond understanding is how the Court could see no need to face up to its two unjustifiable mistakes. The first was, of course, in declaring that the Idaho Tax Commission had failed to cite any authority. Second and even worse was, on having its attention called to its first misstatement, its reaction was to bury its collective head in the sand like the' proverbial ostrich, which was done by summarily denying a rehearing.
All of which has nothing in particular to do with the court’s rebuff dealt to the widow and children of Bob Hilden in their attempt to gain redress for his wrongful death. In general, however, it does have to do with letting them know that in the Rail-box case the Court, on being caught in error as great as in Hilden’s case, gave shorter shrift indeed to a petition for rehearing. The Hilden heirs were awarded a rehearing. The minutes of the clerk of the court will reflect that the necessary two votes were cast by Justice Huntley and Justice Bistline. The rehearing has been had. The Court’s nine page opinion, to which this dissenting view is appended, gives some indication that counsel for the Hilden plaintiffs at least caught the Court’s attention on the rehearing.
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
*339For an act or omission by a defendant to be a proximate cause of a plaintiffs 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.)
As was pointed out in my exhaustive dissent submitted earlier, the author of the majority opinion selectively avoided making any analysis of the district court’s opinion, rather choosing to write as though there was not one available. The dissent pointed to the district court’s review:
The district court in making its Quick review was careful to note plaintiffs’ contention that the ‘but for’ test contained in the second paragraph was not appropriate. The district court defended the giving of this instruction by asserting that ‘[t]he Idaho Supreme Court has recently defined “proximate cause,” ’ Challis Irrigation Co. v. State, 107 Idaho 338, 343, 689 P.2d 230, 235 (Ct.App.1984), and then quoted the excerpt from Challis upon which reliance was placed:
The concept of proximate cause contains two components — cause in fact, and scope of legal responsibility. (Citation omitted.) ...
Proximate cause, in the sense of cause in fact, has been defined as a cause “which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred.” (Citations omitted.) This component of proximate cause embraces two closely related elements.
First, an event is the cause in fact of a succeeding event only if the succeeding event would not have occurred “but for” the prior event. Thus, an act or omission is not the cause in fact of ensuing damage if the damage likely would have occurred anyway. The second element is a requirement that the first event be a “substantial factor” in producing the succeeding event. (Citation omitted.) Thus, a defendant’s conduct is the cause in fact of an event only if it was a material element and a substantial factor in bringing it about. (Citation omitted.)
R. 208 (emphasis added). The district court went on to note that the ‘same language has recently been used in Crosby v. Roward Machinery Co., 111 Idaho 939, 729 P.2d 414 (1986).’ Here the district court was somewhat in error. That language does appear in the Crosby opinion. The district court’s citation to that case leaves the impression that it, too, was an opinion from the Supreme Court. However, the Challis and the Crosby opinions were both from the Court of Appeals. More aptly put, the Idaho Supreme Court was not responsible for either the Challis opinion or the Crosby opinion. [Nor was it responsible for a third ‘but for’ sequel case where the same instruction was involved, Edmark Motors v. Twin Cities Toyota, Inc., 111 Idaho 846, 727 P.2d 1274 (Ct.App.1987).]
Based upon the language found in Challis and Crosby, the district court reasoned that:
The fact that the plaintiff has the burden of proving that a defendant’s negligence was a substantial factor in earning damage to the plaintiff does not excuse the plaintiff from proving that the injury would not have oc*340curved “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). Here the district court erred in equating ‘a proximate cause’ as the equivalent of ‘the actual cause.’ The court also relied on § 431 of the Restatement of Torts:
Sec. 431 defines legal cause. It states, “The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm,____” The Comment immediately following Sec. 431 states:
In order to be a legal cause of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent____ (T)his is necessary, but it is not of itself ’ sufficient. The negligence must also be a substantial factor in bringing about the plaintiff’s harm.
Restatement (Second) of Torts, Comment at p. 429.
R. 207. There is not, and should not be, any problem with the ‘substantial factor’ portion of the instruction. Substantial connotes a degree of more than trivial or slight.
If it had been established conclusively that Mr. Hilden was going to die that day, irrespective of the failure to preoxygenate, then the district court’s analysis was sound, and nothing remained for Justice Bakes to attend to; it would be sufficient to set out the district court’s opinion and affirm it.
117 Idaho at 319, 787 P.2d at 1127 (emphasis in original and added; footnote omitted).
In a footnote to this part of the dissent, it is stated:
There is no contention and also no testimony or evidence of any kind whatever that Mr. Hilden was dying, ill, or in extremis. It was not an emergency situation, but an operation where the surgeon and Dr. Ball had fully collaborated in advance as to the details. No witness testified that Mr. Hilden would have died that day irrespective of whether he had been preoxygenated. Justice Bakes, only by not deigning to address the district court’s opinion, has thus far been able to avoid coming face to face with the district court’s assertion that Dr. Ball presented evidence that Mr. Hilden would have died anyway.
Id., at 319, 787 P.2d at 1127 (emphasis in original and added).
In today’s opinion Chief Justice Bakes has now written at greater length than in the first majority opinion, and may or may not be continuing to adhere to the earlier holding against the plaintiffs because he now writes in a different vein, i.e., that they "did not voice any objection to that [but for] language at the instruction conference.” Majority Opinion on Rehearing, 117 Idaho at 335, 787 P.2d at 1143. In the earlier opinion he was less specific when he wrote: “[a]ppellants generally objected to all jury instructions which they did not propose; however, they did not give the trial court an opportunity to correct potential errors by stating specific reasons for objecting to the given proximate cause instruction.” Id., 117 Idaho at 317, 787 P.2d at 1125. Either way, if that be an inexplicit basis for not awarding the plaintiffs a second trial free of such error, I will recommend to the four judges comprising the majority the fairly recent case of Country Insurance Company v. Agricultural Development, Inc., 107 Idaho 961, 695 P.2d 346 (1985), where this Court painstakingly tracked through the plethora of amendments to Rule 51(a)(1) and discovered the amendment made July 2, 1976, all of which, for facility of viewing is collected in Appendix B attached hereto. See 107 Idaho at 963, 695 P.2d at 348, with special attention directed to footnote 2.
*341In 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 5 to the trial judge who presided ... we cannot conclude that the trial court erred____” 117 Idaho at 320, 787 P.2d at 1128. 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.
But returning to deference, after which point I will shortly close, it 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, which 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),6 and that by reason thereof the *342two 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 judgé 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.
APPENDIX A
[Case caption appears here.]
SPECIAL VERDICT
We, the jury, answer the questions submitted to us in the Special Verdict as follows:
QUESTION NO. 1: Did the Defendant Dr. James Ball negligently fail to meet the applicable standard of health care practice of the community in which such care was provided to Plaintiff's decedent, Robert Hilden, as such standard existed at the time such care was provided, with respect to the class of health care provider to which Dr. James Ball belonged and in which he was functioning, and was such breach a proximate cause of the death of Robert Hilden?
YES NO
QUESTION NO. 2: Was there negligence on the part of Plaintiff’s decedent, Robert Hilden, which negligence was a proximate cause of his death?
YES_ NO_
QUESTION NO. 3: Considering all of the fault of the parties which proximately caused or contributed to the death of Robert Hilden to be one hundred percent (100%), what percentage is attributable to:
(a) Decedent Robert Hilden _%
(b) Defendant Dr. James Ball _%
TOTAL 100 %
QUESTION NO. 4: What are the total damages sustained by Plaintiff?
$-
[Signature lines for twelve jurors appear here.]
Defendant Dr. James Ball’s Proposed Special Verdicts And Requested Instructions R., 82-83.
APPENDIX B
The respondent’s brief in Country Ins. Co. was the backbone of the Court’s opinion, which quote narrates the up and down history of I.R.C.P. 51, and the story started with Archer v. Shields Lumber Co., 91 Idaho 861, 434 P.2d 79 (1967), at which time it was true that:
The failure to object to any instruction given by the court shall not preclude any party to the action from assigning as error on appeal any erroneous instruction given, not requested by such party, or any omission by the court to give a proper instruction____ (Emphasis added.)
Country Ins. Co. v. Agr. Develop., Inc., 107 Idaho 961, 962, 695 P.2d 346, 347 (1985) (emphasis in original). It was amended in 1975:
[T]he prior provision: ‘The failure to object to any instruction given by the Court shall not preclude any party to the action from assigning as error on appeal any erroneous instruction given or any omis*343sion by the court to give the proper instruction,’ was stricken and a mandatory requirement was added that counsel must object to the instructions that will be given by the Court and the failure to make an objection on the record precludes raising the issue on appeal.
Id. at 962, 695 P.2d 346. In 1976 the rule was again amended:
[B]y order dated July 2, 1976, effective October 1,1976[,] [t]hat 1976 amendment completely removed the sentence which is set out in footnote 2 [see below]. A further amendment made to the rule on May 25, 1977, ... did not reinstate the language deleted by the 1976 amendment, but' only continued the requirement of instruction conferences, and changed the existing last sentence of I.R. C.P. 51(a) to read that ‘All objections thereto, and any objections to the giving or the failure to give an instruction, and any court’s ruling thereon, must be made a part of the record.’ Insofar as the argument here is concerned, the rule for almost eight years has not required the making of objections as a condition precedent to assigning error.
Id. at 963, 695 P.2d 346. The 1975 amendment had placed in the rule this mandatory language:
No party may assign as error the giving or the failure to give an instruction unless [the party] objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which [the party] objects and the grounds of [the] objection.
Id. at 963, n. 2, 695 P.2d 346.
. 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*339fense 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. The defendant’s special verdict form is attached as Appendix A. 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.
. In footnote 2 to the majority opinion, deference is increased to substantial deference. How such deference is accorded to the giving of instructions of law may escape practitioners even as it escapes me. Instructions are either correct statements of law, or they are not. They are either applicable to the evidentiary facts and theories of the parties, or they are not.
. The defendants admitted that:
Additionally, Plaintiff contends that Mr. Hilden posed an unusually high risk because of his size and shortness of breath. It was never established by Plaintiff or Defendant that he posed an unusually high risk, but in any event, the testimony of Dr. Ball and the Records reflect that he took an inordinate amount of time and caution in assessing the patient and preparing him for surgery.
R., 213.