dissenting.
In 1967 the Oregon legislature enacted a statute which, among other things, provided that “In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of.” (Oregon Laws 1967, ch 406, now ORS 12.115 (1)).
The majority holds that a products liability case involving a product that is “dangerously defective,” so as to provide a basis for strict liability under § 402A of the Restatement of Torts 2d (1965), is subject to the 10 year limitation provided by ORS 12.115 (1) as an “action for negligent injury,” but that a products liability case involving a product so “dangerously defective” as to be “ultrahazardous,” and thus *713provide a basis for strict liability under tbe rule of Wights v. Staff Jennings, 241 Or 301, 310-311, 405 P2d 624 (1965), is not subject to that limitation.
The majority also holds that although the facts alleged by plaintiff’s complaint in describing this “Timesaver Speed Sander” machine may have been sufficient to entitle him to recovery upon the ground that it was “ultrahazardous,” his claim is nevertheless barred by the 10 year limitation because he contended that he was entitled to recovery under § 402A, even though that limitation would not be a bar if plaintiff had described the machine as “ultrahazardous” and contended that he was entitled to recovery under Wights v. Staff Jennings, supra.
The majority attempts to reconcile these incongruous results by an elaborate process of reasoning based upon assumptions which I believe to be invalid.
1. The assumption by the majority that in enacting OBS 12.115(1) the 1967 Legislature gave no consideration to the “concept of products liability.”
The first assumption upon which the majority opinion is based is its assumption that in enacting Oregon Laws 1967, ch 406, and in its use in § 2 of that statute, the term “any negligent injury,” the 1967 Legislature gave no consideration to the “products liability concept.”①
*714With, all due respect, I would venture to say that such an assumption has no foundation other than speculation and would ascribe to the legislature a naivete, if not ignorance, beyond all reasonable credulity.
I submit, on the contrary, that the courts must ascribe to the legislature some understanding of fundamental rules of tort law. It is a matter of common knowledge that bills in the Oregon legislature ordinarily are prepared by or with the assistance of counsel or are examined by legislative counsel at some stage of the legislative process. Any first year law student in 1967 knew that there could be recovery for injury to persons or property on a number of theories without proof of either negligence or intentional harm. Indeed, this court has held that it must be presumed that a statute has been enacted “in the light of such existing judicial decisions as have a direct bearing upon it.” State v. Waterhouse, 209 Or 424, 436, 307 P2d 327 (1957).
As of 1967 such recovery in Oregon could be had in tort for injury to persons or property resulting, for example, from:
(1) Ultrahazardous activities, such as blasting with dynamite. Bedell et ux v. Goulter et al, 199 Or 344, 349, 261 P2d 842 (1953). See also Gronn et ux v. *715Rogers Construction, Inc., 221 Or 226, 281, 350 P2d 1086 (1960);
(2) Conditions or activities constituting a nuisance, such as in the so-called “fume” cases, Martin et ux v. Reynolds Metals Co., 221 Or 86, 102, 342 P2d 790 (1960), or the chemical spraying cases, Loe et ux v. Lenhard et al, 227 Or 242, 254, 362 P2d 312 (1961);
(3) Escape of stored water. Brown, Adm’x v. Gessler et al, 191 Or 503, 512-513, 230 P2d 541 (1951);
(4) Keeping of animals known to he dangerous. Jaco v. Baker, 174 Or 191, 198-199, 148 P2d 938 (1944).
For several years, decisions by this court had referred to and discussed these theories apart from the traditional concepts of negligence and intentional harm. See Kelley v. Park View Apartments, 215 Or 198, 206-219, 330 P2d 1057 (1959); Hungerford v. Portland Sanitarium, 235 Or 412, 416, 384 P2d 1009 (1963); and Hevel v. Stangier, 238 Or 44, 49-50, 393 P2d 201 (1964).
At least some further development of the concept of strict liability was also not at all “difficult to anticipate” in 1967 in view of the widespread discussion of decisions by the California Supreme Court in Greenman v. Yuba Power Products, Inc., 59 Cal 2d 57, 27 Cal Rptr 697, 377 P2d 897 (1963); and Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal 2d 453, 150 P2d 436 (1944), as well as § 402A of the Restatement of Torts 2d (1965), as approved by the American Law Institute in 1964.
Of even more importance, however, is the fact that even before 1967 this court, by its decision in Wights v. Staff Jennings, 241 Or 301, 405 P2d 624 *716(1965), although not adopting § 402A discussed and cited Greenman and Escola, and held (at 310-311) that:
“* * * We believe that strict liability may be imposed upon the seller in appropriate circumstances through the application of established tort principles directly or by analogy. Thus the seller may be strictly liable for physical harm resulting from the sale of a product which creates an ultra-hazardous condition. In such a case the basis for liability is the same as that employed in other cases imposing strict liability, as for example where the harm results from the use of high explosives, or the use of chemicals.” (Emphasis added)
As pointed out by the majority, the legislature, in the enactment of OES 12.110 (4), was aware of our decision in Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), and the manner in which it changed the law. It is fair to assume then that the legislature, in the enactment of OES 12.115 (1), was equally aware of our decision in Wights because, in my opinion, that decision was as well known by those concerned with the law of torts in Oregon, including the legislature, as our decision in Berry. Thus, the fact that in 1967 the legislature might not have anticipated “the subsequent state of products liability law” is wholly immaterial, because this court had already announced the adoption of a rule of strict liability in torts for application in many, if not all, cases involving the sale of defective products.
It is also significant that the 1973 Legislature again considered this problem and rejected Senate Bill 134, which would have repealed OES 12.115 (1), among other statutes, and adopted for all actions for damage or injury a uniform “statute of ultimate re*717pose” of seven years from the date of the act or omission involved.
It may be, as stated in Berry (at 311) that “legislative inaction is a [somewhat] weak reed upon which to lean in determining legislative intent.” Yet in Berry this court went on to say that the “legislative inaction” involved in that case “should not be ignored” in determining legislative intent.
At the least, the refusal of the legislature to enact such legislation in 1973 is a more substantial “reed” upon which to “lean” in this case in that it confirms the contention that in 1967 the legislature meant what it said in limiting OES 12.115 (1) to actions for “negligence” than the pure speculation by the majority that in 1967 the legislature did not consider that problem at all.
The effect of what the legislature did in both 1967 and 1973 was to reject an approach to this problem as described in Nelson v. Volkswagen of America, Inc., 315 F Supp 1120 (D NH 1970), although in a different context (at 1122), as follows:
“This approach, in our opinion, does not meet the realities of life in today’s society where the consumer is dependent on a remote manufacturer for many of the products he uses. The ‘repose’ of the manufacturer must give way to the welfare of the consuming public, and if this means liability in perpetuity, so be it. Products containing defects when manufactured, which remain undetected, are veritable time bombs ready to explode in the face of the hapless consumer at any time. Manufacturers cannot escape their responsibility for creating such dangers by invoking statutes of limitations designed for contract eases. If it can be proven that the manufacturer was responsible for *718the defect, then it ought to be held responsible for the results.”
It also follows for these same reasons that it is more probable that when the 1967 Legislature enacted Oregon Laws 1967, ch 406, and used in § 2 of that bill the term “any action for negligent injury to person or property,” but used in § 1 the term “any injury to the person or rights of another, not arising on contract,” the legislature knew very well that there were various other grounds in addition to “negligence” for recovery for “injury to person or property,” and that with such knowledge the legislature meant what it said when it provided a 10 year limitation only for “any action for negligent injury.”
2. The assumption by the majority that this court may properly, as a matter of statutory “interpretation,” refuse to give the words of an unambiguous statute their plain and ordinary meaning if to do so would require a result which this court believes to be “unreasonable.”
The majority does not contend that the words “any action for negligent injury” are ambiguous. Instead, the majority states that the following is a proper rule of statutory interpretation of an unambiguous statute and the rule which should be applied in this case:
“* * * [T]he rule requiring the court to follow the plain meaning of seemingly unambiguous language is not inflexible and not without exceptions. Hence, if the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result, the literal interpretation must give way and the court must look beyond the words of the act. * * *” (Emphasis added)
*719With all due respect to the majority, it is submitted that although much loose language has been used by the courts in stating purported “rules” of statutory construction, the proper rule for application in this case is the rule stated by this court in Fox v. Galloway, 174 Or 339, 347, 148 P2d 922 (1944), which the majority quotes with apparent approval, but declines to follow:
“If the language is plain and unambiguous, if it can be given but one meaning, and that meaning does not lead to an impossibility or an absurdity such as the legislature could not be supposed to have intended, the court must give effect to that meaning if constitutional, even though the result may be, in the court’s opinion, harsh, unjust or mistaken in policy [citing cases].” (Emphasis added)
To the same effect, see Feero et al v. Housley et al, 205 Or 404, 415, 288 P2d 1052 (1955); and Roy L. Houck & Sons v. Tax Com., 229 Or 21, 30-31, 366 P2d 166 (1961).
Indeed, OES 174.010 states the following requirement:
“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, * * *.”
What the majority has done in this case is to adopt a “rule of statutory construction” under which it has refused to “declare” the plain and ordinary meaning of the words “any action for negligent injury,” but has “insert (ed) what has been omitted,” i.e., reference to an action for strict liability under § 402A.
The general rule of statutory construction, of course, is that the words used in a statute are to be *720given their “plain” and “ordinary” meaning. 2A Sands, Sutherland Statutory Construction 24, 48, §§ 45.08, 46.01 (4th ed 1972). To the same effect, it is a well recognized rule of statutory construction, as also stated in Sands, supra (at 277-278), that:
“Words and phrases having well-defined meanings in the common law are interpreted to have the same meanings when used in statutes dealing with the same or similar subject matter as that with which they were associated at common law.
See also Sands, supra at 49.
This court in Silver Falls Co. v. E. & W. Lbr. Co., 149 Or 126, 148-149, 40 P2d 703 (1935), held, in construing a statute using the word “negligence,” that:
“* * * The act does not define negligence, and a conclusion is therefore warranted that the legislature expected the courts to apply to the term its. common-law meaning. * * *”
The rule of statutory construction which should have been applied by the majority in this case is the rule stated by this court in Lane County v. Heintz Const. Co. et al, 228 Or 152, 160, 364 P2d 627 (1961), as follows:
“The insertion of words inadvertently omitted or the alteration of the language of a statute by a court is a power always cautiously exercised and never employed unless it can be dearly seen that to do so is necessary to effectuate the legislative intent. * * *” (Emphasis added)
This is consistent with the generally recognized rule that a statute of limitations should not be applied to cases not clearly within its provisions. Pugnier v. Ramharter, 275 Wis 70, 81 NW2d 38, 42 (1957); and Mowry v. City of Virginia Beach, 198 Va 205, *72193 SE2d 323, 326 (1956). See also Note, Statutes of Limitations: Their Selection and Application in Products Liability Cases, 23 Vand L Rev 775, 776, 790 (1970). Cf. Comment, 45 Or L Rev 73, 80 (1965).
With all due respect to the majority, I do not believe that this court can say with any degree of confidence that it is “clear” that when the Oregon legislature adopted OBS 12.115 (1) in 1967 it intended that statute to be applied to products liability cases based on strict liability under § 402A, but not to injuries resulting from “ultrahazardous” products, conditions or conduct, nuisances, or to any other actions for “injury to persons or property.”
3. The assumption by the majority that it is “unreasonable” per se for two different statutes of limitations to apply in a single action for personal injuries.
It appears to be implicit in the opinion by the majority that it is “unreasonable” per se, and therefore “at variance with the apparent policy of the legislature as a whole,” or vice versa, for “an action for negligent injury” to be subject to a 10 year “statute of repose,” but an action for the same injuries, if brought under § 402A of the Bestatement of Torts 2d, not to be subject to the same limitation.
In Redfield v. Mead, Johnson & Co., 266 Or 273, 512 P2d 776 (1973), an action was brought for personal injuries against the manufacturers of a contraceptive drug. The action was brought more than two years after the alleged injury, but within four years. The trial court sustained a demurrer on the ground that the action was barred by the two year tort statute of limitations, OBS 12.110. We reversed, *722holding that the four year statute of limitations provided by the Uniform Commercial Code, ORS 72.7250, was applicable.
In so holding, the majority of the court (O’Connell, C.J., and Holman, J., dissenting) expressly rejected defendant’s contention to the effect that it was unreasonable to assume that the legislature could have intended two different periods of limitations to he applicable in products liability cases. In so holding we said (266 Or at 279):
“It is argued that the legislature could not have intended plaintiffs in product liability cases to have a choice between two different limitation periods, * * *. We have not, however, found any evidence of the legislature’s intention to limit plaintiffs to a single theory of recovery.”
In Redfield this court (266 Or at 280-281) also cited other cases in which this court had also held that a plaintiff may have available to him two different periods of limitation in an action for a single wrong, depending upon which of two theories of recovery he may choose, including Martin et al v. Reynolds Metals Co., 221 Or 86, 342 P2d 790 (1960), and Wells v. Oldsmobile Co., 147 Or 687, 35 P2d 232 (1934).
In addition, it should be remembered that the legislature has not followed any uniform policy as to either “ordinary” statutes of limitation or what the majority refers to as “ultimate statutes of repose.”
ORS 12.110 (1) provides that in an action for fraud the statute of limitations is two years hut the “limitation shall he deemed to commence only from the discovery of the fraud or deceit.”
ORS 12.110 (4) provides that in an action for *723injuries arising from any medical treatment the statute of limitations is “two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered” but in no event later than “five years from the date of the treatment.”
ORS 12.135 (1), adopted in 1971, provides that in an action against architects, engineers and contractors for damages from construction of improvements on land the statute of limitations is “two years from the date of such injury” but in no event later than “10 years from substantial completion” of the construction.
ORS 12.110 (1) provides, among other things, that actions for injury to the person or rights of another (including negligent injuries) shall be commenced within two years, but it is provided by ORS 12.115 (1) that “In no event shall an action for negligent injury” be commenced “more than 10 years from the date of the act or omission complained of.”
No other “ultimate statutes of repose” are provided for any other actions.
It may be that in the interests of consistency a uniform “statute of ultimate repose” should be adopted for these and other actions. In my view, however, the decision whether to adopt such a uniform limitation is one to be made by the legislature by statute, rather than by this court by “judicial legislation,” particularly in view of the fact that the legislature has shown no inclination to adopt uniform periods of limitation, but has instead adopted non*724uniform limitations for other similar actions, as illustrated above.②
Indeed, the 1973 Legislature rejected Senate Bill 134, which would have repealed OBS 12.115 (1), among other statutes, and would have adopted a seven year statute of “ultimate repose” from “the date of the act or omission on which the action is based” for all actions for damage or injury.
4. The assumption by the majority that the “rationale” for the purposes of the statute of limitations is not only the same as between an action for negligent injuries and an action under % 402Á, but is different as between either of such actions and an action for injuries caused by an “ultrahasardous” product, condition or activity.
The thesis of the majority, to the effect that it would be “unreasonable” for “an action for negligent injury” to be subject to the 10 year limitation of OBS 12.115 (1), but an action under § 402A not to be subject to the same limitation, rests upon the assumption that the “rationale” for the purposes of that statute of limitations is not only the same as between such actions, but that such a “rationale” is not the same as between “an action for negligent injury” and an action for injury from a product that is defective in the sense that it is “ultrahazardous.”
*725a. The lack of “substantial differences” in the way in which “an action for negligent injury” and an action under § 402Á is pleaded and tried is immaterial.
In its “rationale” analysis the majority relies heavily upon the argument that:
“* * * [TJhere is seldom much difference between the way a negligence case and a products liability case are tried. Plaintiff usually pleads one count in negligence and one count in products liability, as was done here. * * * Evidence which is relevant to one usually is relevant to the other. * * * The two issues are both related to approximately the same period of time — that is, the time of manufacture and sale. It is our conclusion that there is no substantial difference between the evidence that is used to prove the two types of cases insofar as the applicability of a statute relating to the reliability and availability of evidence is concerned.”
Such a contention, it is submitted, “proves too much” because the same is also true as between “an action for negligent injury” and an action for injury resulting from an “ultrahazardous” product, condition or activity or from a nuisance, which the majority appears to concede to be not subject to the 10 year limitation of ORS 12.115 (1).
Indeed, it is common practice in products liability cases to plead in separate counts, if applicable, not only a theory of negligence and strict liability under § 402A, but also, if applicable, theories of warranty, “ultrahazardous” product, conduct or condition or activity, and nuisance.③ As to the problems of proof *726in a products liability case as between (1) negligence, (2) strict liability under § 402A, and (3) recovery for an “ultrahazardous” product, condition or activity, this court has recently said, in an opinion by Holman, J., in Phillips v. Kimwood Machine Co., 269 Or 485, 525 P2d 1033 (1974):
“* * * It is necessary to remember that whether the doctrine of negligence, ultrahazardousness, or strict liability is being used to impose liability, the same process is going on in each instance, i.e., weighing the utility of the article against the risk of its use. Therefore, the same language and concepts of reasonableness are used by courts for the determination of unreasonable danger in products liability cases. * * * The difference between the three theories of recovery is in the manner in which the decisional functions are distributed between the court and the jury. * * *” (Emphasis added)
See also 2 Harper and James, The Law of Torts 799-801, § 14.4 (1956).
b. There are more “substantial differences” between “an action for negligent injury” and an action under % 402Á than between an “action for negligent injury” and an action based upon an “ultrahazardous product, condition or activity.”
Despite these similarities in the practical problems of pleading and proof as between “an action for negligent injury” and an action in strict liability under § 402A of the Restatement of Torts 2d (1965), there are basic differences between the two actions. Even the majority recognizes that:
_“* * * [I]n a negligence case the reasonable*727ness of the defendant’s actions is in question while in a products liability case it is the condition of the article at the time of the sale which is in question.” (Emphasis added)
As also stated by Prosser on Torts 672, § 103 (4th ed 1971):
“Strict liability has eliminated any question of negligence, and in the ordinary case has made evidence of the defendant’s due care immaterial. * #
To the same effect, see Marble v. Mulholland’s, Inc., 265 Or 259, 271, 509 P2d 529 (1973). See also Prosser, supra, 658, n.57, and 661, §§ 98 and 99; Restatement of Torts 2d, § 402A, Comment n (1965), stating that the liability under § 402A “does not rest on negligence.”
On the other hand, the underlying basis for an action to recover for an injury caused by an ultra-hazardous product, condition or activity, or by what may more commonly be referred to as a nuisance, has a close relationship to other forms of strict liability. As stated in Wights v. Staff Jennings, supra at 310-311:
“* * * In such a case the basis for liability is the same as that employed in other cases imposing strict liability, as for example where the harm results from the use of high explosives, or the use of chemicals.”
But regardless of the origin and basis for an action for damages caused by a product so defective as to be “ultrahazardous” or result in an “ultrahazardous condition,” this court in Wights v. Staff Jennings, supra at 311, appeared to consider the theory of possible recovery in an action under § 402A for an injury caused by a “dangerously defective” product *728not involving an “ultrahazardons” condition (which was not yet recognized by this court at that time) to be an extension of the theory under which recovery was recognized in that case for an injury caused by a product so dangerously defective as to result in an “ultrahazardous” condition.④
It follows, in my opinion, that an action under § 402A to recover for injuries caused by a “dangerously defective” product is more “substantially similar” to an action to recover for injuries caused by a product so dangerously defective as to be “ultrahazardous” or to result in an “ultrahazardous” condition than it is to “an action for negligent injury.”
It also follows, for these reasons, that there is no proper basis for the holding by the majority that an action in strict liability under § 402A for personal injuries caused by a “dangerously defective” product must be subject to the 10 year limitation of ORS 12.115 (1) because of its “substantial similarities” to “an action for negligent injury,” but that an action for personal injuries caused by a product so “dangerously defective” as to be “ultrahazardous” or result in an “ultrahazardous” condition must not be subject to such a 10 year limitation.
c. Proof in an “ultrahazardous” case is as “likely to be obscured by the passage of time” as the *729proof in a “dangerously defective” products liability case.
The primary ground on which the majority challenges the validity of the foregoing reasoning is as follows:
“The fallacy of this reasoning [referring to the reasoning of this dissent] is in assuming that problems concerning the availability and credibility of evidence as well as other related factors are the same in all types of strict liability. The dissent’s assumption is valid only if such problems relating to ultrahazardousness cases are the same as they are in products liability cases.”
The sole and only basis offered by the majority in defense of its elaborate “rationale” analysis relating to “availability and credibility of evidence” on this critical issue is as follows:
“* * * Proof of the issues in [an ultrahazardousness] case is not so likely to be obscured by the passage of time. The principal issues are the extent of the damage, which necessarily is of recent vintage, and whether the activity which caused the damage is of the kind that is abnormally dangerous. The inherently dangerous propensities of liquid natural gas, dynamite, aluminum fumes, or of other substances and activities are matters that usually are readily capable of proof without regard to the passage of time. * * *”
The present statement by the majority may have been true in McLane v. Northwest Natural Gas, 255 Or 324, 467 P2d 635 (1970), the single case cited in support of that statement — a case involving an explosion of stored natural gas. It does not follow, however, that this broad statement by the majority is true in other types of “ultrahazardous” cases to any greater or lesser extent than in cases under § 402A.
*730The majority mentions aluminum fume cases as another example. Anyone familiar with the problems of proof in an aluminum fume case involving damage to trees, cattle, or human health knows that the statement by the majority is completely untrue in such a case. The “extent of damage” in such a case is not “necessarily * * * of recent vintage,” but usually develops slowly over the course of years as minute amounts of fluorides are deposited upon the leaves of trees or upon vegetation consumed by cattle or humans or upon the soil from which it grows. Although the “dangerous propensities” of fluorides may be “well known” arid “readily capable of proof,” the problems of proof of the amounts of fluorides particulates discharged by an aluminum plant, not to speak of the problems of proof of the amount deposited on the soil, vegetation or trees on property several miles from such a plant and the amount ingested by cattle or human beings, as evidenced by the amounts found to be present in bones or internal organs, are infinitely more difficult of proof.⑤
In response to this, the majority says that:
“# * * One can draw all the similarities or dissimilarities one desires from the various theories of recovery, but the thing of importance is the similarity or dissimilarity of the evidence it takes to prove the respective theories. The fact remains that the evidence in products liability cases and *731negligence cases is identical, so the problems of the availability and credibility of evidence have to be the same. The contrary is true in the average ultra-hazardous case. * * *” (Emphasis added)
This assumes that there is such a thing as an “average ultrahazardous case.” Such cases range in complexity and difficulty in proof from an aluminum fume case to a products liability case such as that involved in Wights v. Staff Jennings.
It need not be demonstrated that the “problems concerning the availability and credibility of evidence” in “the average ultrahazardous case” are necessarily more difficult than those involved in “an action for negligent injury” or in an action under § 402A involving a “dangerously defective product.” What is important, however, is that this flat statement by the majority, without support by any empirical data, is a far too slender reed upon which to rest the contention by the majority that the legislature intended that an action in strict liability under § 402A for personal injuries caused by a “dangerously defective product” be considered to be “an action for negligent injury,” so as to be subject to the 10 year limitation provided by OES 12.115 (1), but intended that an action in strict liability for injuries caused by an “ultrahazardous product” not be subject to that limitation.
5. The assumption by the majority that this case can only be treated as a “% 402Á case” and cannot also be considered as an “ultrahazardous product or condition” case.
One of the primary grounds upon which the majority rests its opinion is that when the legislature adopted OES 12.115 (1) in 1967 this court had not yet *732“fully embraced Bestatement (Second) of Torts § 402A” and that an action under § 402A is so substantially similar to “an action for negligent injury” that the legislature would have intended to regard it as “an action for negligent injury” for the purposes of OBS 12.115 (1) had it considered the problems at that time. Conversely, and as also previously stated, the majority has conceded, and with good reason, that the legislature did not intend to regard an “ultra-hazardous” case as “an action for negligent injury” for the purpose of the 10 year limitation provided by OBS 12.115 (1).
In this entire course of reasoning the majority has implicitly assumed that this case must be treated as a “§ 402A case” and that liability in this case cannot be based upon the ground that plaintiff’s death was caused by an “ultrahazardous” product or by an “ultrahazardous condition.” This is another completely invalid assumption, in my opinion.
The complaint in this case alleged that the “Timesaver Speedbelt Sander” sold by defendant Star Machinery Company to the TI.S. Plywood Corporation was “unreasonably dangerous for use by reason of the following defects in its manufacture, design and assembly”:
“1. The input system of the sander was designed in such a fashion as to allow plywood panels to enter the sander in an overlapping fashion or more than one at a time which resulted in the panels hanging up, and thereafter releasing or shooting out of the sander with great force and speed.
a# # # # #
“3. The sanding belt and rollers or drums were designed so as to rotate in the same direction as the direction of travel of the material being sanded *733and to rotate at high speed and pressure causing the panels to catch against the sanding belt and to shoot the panels out of the machine with great force and speed.”
From these allegations of fact it is clear that, if supported by proof, this plywood sanding machine was so “dangerously defective” as to create an “ultrahazardons condition,” just as the butane fuel system in the boat in Wights v. Staff Jennings, supra, was so dangerously defective as to impose strict liability upon the seller upon the ground that it “create(d) an ultrahazardons condition.” It follows for this reason, wholly independent from all other reasons discussed in this dissent, that because the majority has conceded that “nltrahazardons” cases are not subject to ORS 12.115 (1), neither is this case subject to the 10 year limitation imposed by that statute.
The majority does not deny that the facts alleged by plaintiff create an “nltrahazardons condition,” but would dismiss this entire contention by the statement that it would “come as a great surprise to both litigants”; that plaintiff relied on § 402A; that “nltrahazardons” was “never mentioned by anyone”; and that this court will not “construe plaintiff’s complaint in a manner which he did not intend and for which he makes no contention.”
It is true that neither plaintiff’s complaint nor plaintiff’s brief described the facts alleged in his complaint by the label “ultrahazardous.” He did, however, describe the conditions as “unreasonably dangerous.” Plaintiff’s brief contended that the question to be decided in this case is whether ORS 12.115 (1) applies “to actions based on strict liability” and that the statute “does not bar plaintiff’s action for strict li*734ability in tort.” In support of that contention plaintiff cited § 402A. He also cited Prosser 657-58, § 98, on “strict liability in tort,” which is not limited to cases under § 402A. His position was that ORS 12.115 (1) has no application to any strict liability cases, including both § 402A and “ultrahazardous” cases.
Defendant, in response, makes no contention that ORS 12.115 (1) applies to only § 402A cases, and not to “ultrahazardous cases,” but contends flatly that both are subject to that statute and, indeed, that it was intended to apply to all actions in tort.
Thus, plaintiff had no reason to contend on this appeal that even if strict liability cases under § 402A are subject to ORS 12.115 (1), strict liability cases involving “ultrahazardous” products, conditions or activities are not subject to it. Indeed, it will come as more of a surprise to both parties to learn that the majority has decided this case upon a “theory of [non] recovery * * * never mentioned by anyone” in that the majority, while conceding that both § 402A and “ultrahazardous” are both types of strict liability, goes on to hold that some strict liability cases (§ 402A cases) are subject to ORS 12.115 (1), while other strict liability cases (including “ultrahazardous” cases) are not.
In recent years in products liability cases this court, in recognition of the admittedly confused state of the law on this subject, has consistently applied the rule that a cause of action is comprised of the facts alleged in the complaint which entitle the plaintiff to recover on some legal theory and that merely because he has placed the “wrong label,” on the facts alleged, or has failed to place the “right label” upon them, does not bar him from recovery, even under a theory *735of recovery not recognized or contended for by either party to this court.
Thus, the complaint in Wights v. Staff Jennings, supra, did not allege that the fuel system resulted in an “ultrahazardous condition” — the theory of liability adopted by this court in that case. Instead, it alleged, as in this case, that the system was “dangerous,” as a result of the facts alleged. The court had sustained a demurrer to an earlier complaint on the ground that the complaint improperly joined a cause of action for breach of warranty and for negligence. Defendant contended that this was a misjoinder and that there was no basis for recovery on either theory. This court held that under the facts of that case plaintiff was entitled to recover on a theory of strict liability for creating an “ultrahazardous” condition.
Similarly, in Markle v. Mulholland’s, Inc., supra, this court (at 263) stated that the complaint “purports to state a cause of action for breach of warranty.” Neither party made any mention of § 402A in their briefs to this court. Nevertheless, the court held that plaintiff was entitled to recover under § 402A, saying that:
“* * * In previous cases, because of the evolving nature of the law in this field, we have treated similar complaints as stating as broad and all-encompassing a cause of action as it was possible to state for strict liability arising out of the sale of goods. * * *”
To the same effect, see Redfield v. Mead, Johnson & Co., supra at 278; McGrath v. White Motor Corp., 258 Or 583, 593-94, 484 P2d 838 (1971); and Vanek v. Kirby, 253 Or 494, 502, 450 P2d 778, 454 P2d 647 (1969).
*736This is the first time in a products liability case, at least in recent years, that the court has refused to permit recovery to a plaintiff for not attaching the correct “label” to his claim for recovery, even when alleging or proving facts entitling him to recover. Ironically, the majority does so by adopting a theory for denial of recovery which was never advanced by defendant or mentioned by either party on this appeal.
To apply ORS 12.115 (1) in this case leaves this plaintiff without a remedy. In my opinion, the strong reasons of public policy arising from the need to protect consumers, workmen and other persons injured by defective products in an industrial society, whether such products are “dangerously defective” or “ultrahazardous,” requires that this court should not impose limitations upon such recovery in an action under § 402A to recover for personal injuries caused by a “dangerously defective” product in the absence of demonstration that it was “clearly” intended by the legislature that such an action be included within the provisions of a statute which by its express terms applies solely to actions for “negligent injury.”
For these reasons I must respectfully dissent.
Thus, the majority says that:
“We find no evidence in the legislative history which indicates the legislature specifically considered the products liability concept when it enacted the statute. It would have been difficult for the legislature to anticipate the subsequent state of products liability law because this court first fully embraced Restatement (Second) of Torts § 402A six months *714after the effective date of ORS 12.115 (1), when we decided the case of Heaton v. Ford Motor Co., 248 Or 467, 435 P2d 806 (December 29, 1967). Statutory construction difficulties usually arise from situations in which the legislature did not anticipate the problem. This situation is no exception. Had the problem been anticipated, would the legislature have included products liability cases within the purview of ORS 12.115 (1) or would it have excluded them so that liability from undiscovered injury or defect would go on forever from the time of the act or omission complained of.”
This is in accord with the view expressed by this court in Bales for Food v. Poole, 246 Or 253, 256-257, 424 P2d 892 (1967), in which we said:
“* * * From our analysis of the problem we have concluded that there is a need for change in the law relating to the limitation of actions, but we think that the change should come through legislation rather than by a judicial effort to make refinements such as plaintiff suggests in this case.”
See also Comment, Torts in Contract: A New Statute of Limitation, 52 Or L Rev 91, 92, 94, 97-98 (1972).
See, for example, Brown, Adm’x v. Gessler et al, 191 Or 503, 510-511, 230 P2d 541 (1951); Gronn et ux v. Rogers Construction, *726Inc., 221 Or 226, 231-32, 350 P2d 1086 (1960); Jaco v. Baker, 174 Or 191, 198-199, 148 P2d 938 (1944); and National Automobile and Casualty Ins. Co. v. Mt. Pitt Co., 234 F Supp 477 (D Or 1964).
In Wights v. Staff Jennings, 241 Or 301, 405 P2d 624 (1965), we said (at 311):
“* * * A defective fuel system which permits the escape of gas fumes into the engine compartment of a boat can be found to create an extrahazardous condition for which the defendant could be held strictly liable. Whether a supplier of a defective product is strictly liable for personal injuries when his conduct is not extrahazardous we need not now decide.”
Indeed, this court has previously recognized that there may be other cases in which a cause of action does not arise until some years after the act complained of. See Berry v. Branner, 245 Or 307, 310, 421 P2d 996 (1966). In that case the court cited Brush Beryllium Company v. Meckley, 284 F2d 797 (6th Cir 1960), as an example of such a case. In that case a plant had discharged fumes from 1941 to 1949, slowly causing a disease in the respiratory tract of the plaintiff which was not diagnosed until 1958.