concurring.
I concur in the opinion of the court. Nevertheless, I am not satisfied with the practice of instructing juries on different burdens of proof in cases such as this. Having tried unsuccessfully as a trial judge to effect some re-examination of this troublesome problem, see Pelfrey v. Kuni Cadillac, 49 Or App 241, 619 P2d 662 (1980), I merely *41record my conviction that the arguments presented in Justice Lent’s specially concurring opinion in Byers v. Santiam Ford, Inc., 281 Or 411, 418, 574 P2d 1122 (1978), are most persuasive.