(concurring in part, dissenting in part).
I concur on the affirmance of the directed verdict in favor of Texaco. Appellant’s brief relies upon Pearson v. Franklin Laboratories, Inc., 254 N.W.2d 133 (S.D.1977), and Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D.1976), for this contended proposition: that in the Pearson case, plaintiff was unable to show the condition of the product in the hands of the manufacturer and was unable to point to any particular defect in the product (Pearson was a breach of warranty case); that in Pearson, plaintiff had to show nothing more than the circumstances surrounding the product at the time the product came into plaintiff’s hands. In different vernacular, this appellant, as regards Texaco, maintains that evidence having been introduced that the gasoline was defective, the burden of establishing that the product was not defective while in their possession, should be shifted to the manufacturer and dealer. South Dakota does not follow this rule but other states do. We adopted the doctrine of strict liability in Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973). We have consistently held that the plaintiff has the burden of proving that the defect existed while the product was in the possession and control of the defendant. Crandell v. Larkin & Jones Appliance Co., 334 N.W.2d 31 (S.D.1983); Shaffer, 249 N.W.2d 251; and Sweetman Constr. Co., Inc. v. Dakota Pump, 88 S.D. 650, 226 N.W.2d 792 (1975). It is true that appellant could establish the existence of a defect in the hands of Texaco by circumstantial evidence. However, as the trial court noted, there was no evidence brought forward which established that Texaco caused water to exist in the gasoline. There was no proof that when the gasoline left the possession of Texaco the product was defective, i.e., water in the gasoline. Therefore, the trial court properly granted a directed verdict against the appellant and in favor of Texaco.
I would reverse the decision of the trial court and call for a new trial as regards appellee Blomstrom Oil Company. I would do it based upon the fact that the plaintiff was entitled to have his proposed instruc*312tion # 17 given to the jury.* This proposed instruction was vital in view of the unfair solar plexis blows rendered by Blomstrom Oil Company unto Kreager during this trial; and, particularly, final arguments by counsel for Blomstrom Oil which vigorously contended that the source of water in the gasoline could possibly have been inserted by vandals; There was no evidence of any vandals placing water into the gasoline and this was improper argument as it was not based upon evidence in the record. Also, in cross-examination, counsel for Blomstrom Oil, by inference and innuendo, tried to get across in front of the jury that the water got into the fuel via rainwater or deliberate vandalism. Counsel for Blom-strom Oil extensively argued, in closing argument, that anyone could have taken the top off and put water, mud, sand, or whatever they wanted to “in there.” Responding to the inference and innuendo in cross-examination, and its impact before the jury, counsel for plaintiff proposed instruction # 17. Relying upon the language in Shaffer, plaintiff’s counsel requested an instruction to the effect that although the burden of proving causation falls upon the plaintiff, it does not require that the plaintiff eliminate all other possible explanations of causation. To blunt the damaging remarks of Blomstrom Oil Company’s counsel, the instruction should have been given. Simply put, it should have been given to be fair. Trials are about fairness. They are about making people play by the rules. Counsel for Blomstrom Oil did not play by the rules and counsel for plaintiff tried to mitigate the highly prejudicial remarks. In effect, I am saying that the inference and innuendo in cross-examination, totally unproven by evidence, demanded some type of instructional force such as the language found in Shaffer and which plaintiff’s counsel professionally researched and advocated in good workmanlike manner. Plaintiff found himself fighting a phantom vandalism opponent. If plaintiff would have received the requested instruction, he could have commented upon it, and tried to soften the solar plexis blows. No instruction addressed, specifically, the point which I have addressed; thus, the instructions did not fairly embody the issues of law. There was prejudicial error on the instructions. A good judge in a trial is like a good referee in a basketball game; when he sees a foul committed, he blows the whistle and tries to right the wrong. No whistle here.
This issue does not involve appellee Texaco.