Wells v. Morrison, 121 Or. 604, 256 P. 641 (1927)." Blake v. Webster Orchards, 249 Or. 348, 354-355, 437 P.2d 757 (1968). The dissenting Justices in DeSpain v. Bohlke, 259 Or. 320, 329, 486 P.2d 545 (1971), would go further:

The mere mentioning of the words "insurance company" does not, of itself, necessarily constitute error. Blake v. Webster Orchards, 249 Or. 348, 437 P.2d 757 (1968); Johnson v. Hansen, 237 Or. 1, 389 P.2d 330 (1963), rehearing denied, 390 P.2d 611 (1964); Melcher v. Connell, 119 Or. 626, 250 P. 742 (1926). The defendant argues, without reference to any evidence of such in the transcript, that:

No party has raised any denial of due process claim as discussed in In re Marriage of Flaherty, 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179 (1982). Plaintiff argues that there was no probable cause to believe that defendant could prevail in the Court of Appeals, based on Blake v. Webster Orchards, 249 Or. 348, 437 P.2d 757 (1968). The injection of an irrelevant reference about insurance remains disfavored, and may in certain situations require a mistrial.

Thus, it was error for the trial court to instruct the jury on the basis of implied warranty of fitness of the food for human consumption. In Blake v. Webster Orchards, 249 Or. 348, 437 P.2d 757 (1968), the plaintiff alleged a cause of action in negligence but proceeded to try the case in part on the theory of strict liability. The trial court instructed the jury on strict liability.

Defendant argues that, because plaintiffs' attorney's misconduct was intentional, the trial court did not have discretion to deny his motion. In support of this position, he relies on Blake v. Webster Orchards, 249 Or. 348, 437 P.2d 757 (1968), and Leishman v. Taylor, 199 Or. 546, 263 P.2d 407 (1953). Those cases, however, involved references to insurance made during trial.

The court directed a verdict for defendant. In a memorandum opinion, the trial court, relying on Blake v. Webster Orchards, 249 Or. 348, 437 P.2d 757 (1968), and Gardyjan v. Tatone, 270 Or. 678, 528 P.2d 1332 (1974), held that plaintiffs could not plead a negligence theory and recover on a theory of strict liability. Although Blake and Gardyjan did hold that plaintiffs in those cases could not plead negligence and recover for strict liability, those holdings do not apply to this case.

[lawn mower]; Pike v. Frank G.Hough Co. (1970) 2 Cal.3d 465 [ 85 Cal.Rptr. 629, 467 P.2d 229] [paydozer]; Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [ 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049] [lathe]; Culpepper v. Volkswagon of America, Inc. (1973) 33 Cal.App.3d 510 [ 109 Cal.Rptr. 110] [automobile]; Smith v. Dhy-Dynamic Co. (1973) 31 Cal.App.3d 852 [ 107 Cal.Rptr. 907] [earth mover]; Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633 [ 105 Cal.Rptr. 890] [plastic molding press]; Bexiga v. Havir Mfg. Co. (1972) 60 N.J. 402 [ 290 A.2d 281], Rhoads v. Service Machine Company (E.D.Ark. 1971) 329 F. Supp. 367 [punch presses]; Rekab v. Frank Hrubetz Co. (1971) 261 Md. 141 [ 274 A.2d 107] [ferris wheel]; Pizza Inn,Inc. v. Tiffany (Tex. Civ. App. 1970) 454 S.W.2d 420 [dough rolling machine]; Wright v. Massey Harris, Inc. (1968) 68 Ill. App.2d 70 [ 215 N.E.2d 465] [cornpicker]; Williams v. Brown Mfg. Co. (1968) 93 Ill. App.2d 334 [ 236 N.E.2d 125] [trencher]; Blake v. Orchards (1968) 249 Or. 348 [ 437 P.2d 757] [brush cutter]; Schipper v. Levitt Sons, Inc. (1965) 44 N.J. 70 [ 207 A.2d 314] [hot water faucet]; Ford Motor Co. v. Wagoner (1946) 183 Tenn. 392 [ 192 S.W.2d 840, 852, 164 A.L.R. 364] [automobile].)

This conclusion has been influenced by several decisions, none of which are controlling, but which, together, appear to us to point the way: (a) In Blake v. Orchards, 249 Or. 437, 437 P.2d 757 (1968), a motor driven brush cutter, manufactured by the defendant, threw a rock which hit and injured the plaintiff, who presumably was a bystander or was passing by. The trial court submitted to the jury the issue of strict liability as follows: "You are instructed that a manufacturer who makes and sells brush cutting machinery which by reason of a defective design or inadequate guarding causes an extrahazardous condition for persons in the vicinity of its use is strictly liable to such persons for injury and damage caused by such defective design or such inadequate guarding."

Gardyjan v. Tatone, 270 Or. 678, 680-81, 528 P.2d 1332 (1974). Blake v. Webster Orchards, 249 Or. 348, 352-53, 437 P.2d 757 (1968). Although the Gardyjan and Blake cases were decided prior to the adoption of the Oregon Rules of Civil Procedure, it is my opinion that they accurately state the current law.

* * *'" (Emphasis added) In Blake v. Webster Orchards, 249 Or. 348, 355-56, 437 P.2d 757 (1968), the majority of this court appears to have approved and adopted the foregoing view, as stated in Johnson v. Hansen, supra, by the following statement: "* * * there is doubt whether or not a defendant is really prejudiced if a jury learns that the defendant has insurance.