I respectfully dissent. I would affirm the judgment of the trial court.
It is true plaintiff alleged specifically that this product was defective because it contained thallium. However, there is also a general allegation that the product in question was in such a defective condition as to subject plaintiff to an unreasonable *124risk of harm, and, as such, the product was unfit for its intended use.
Plaintiff’s pleadings also contained the allegations that he purchased the product and used it in accordance with the directions; that he gave himself the patch test before using; that before such use he had a full head of hair; and that it was characteristic of his family to keep a full head of hair.
It must be remembered that the point of error sustained by the majority opinion is that there is no evidence to support the jury finding that this hair coloring was defective at the time it was sold to him. In passing upon such a point, this court can consider only the favorable evidence to such finding.
It is stipulated that defendant packaged, bottled, and prepared the product in question, and, in effect, that there was no substantial change in its condition when sold to plaintiff. Defendant’s answer to an interrogatory shows the manufacturing of this product was discontinued during the year 1969.
Plaintiff testified to the following: He bought this product in March 1970. He read the instructions with the product and followed them. He gave himself the patch test as directed. Then he applied this product and noticed a burning sensation immediately. The burning sensation continued until he rinsed the product off. In two or three days his scalp began to bleed and large clumps of hair started falling out; that he did not use anything else that could have caused the bleeding and loss of hair. When his hair did not grow back he went to see a doctor. He has continued to experience hair loss. He had a full head of hair before this incident. His father is still alive and has a full head of hair. There are no baldness traits for the males in his family.
Dr. Ida Walton testified to the following: She is a dermatologist by profession, and a licensed medical doctor; that plaintiff suffered from alopecia areata, which resulted in his hair loss. His problem was a postin-flammation alopecia, with destruction and atrophy of the underlying hair follicles, resulting from the intense dermatitis and subsequent infection which followed the use of the hair dye; that her diagnosis was based upon the most reasonable medical probability in determining the cause of the condition. She ruled out the probability of a spontaneous loss of hair.
In answer to the following hypothetical question, Dr. Walton gave this answer:
“QUESTION: Assume with us, then, that the only inflammatory agent that was applied to his head, during this period of time, was the Color Up in question; assume with us, also, that the history that I will give to the judge and jury will reflect that he experienced an immediate onset of irritation and difficulty in that area. Would you, within a reasonable medical probability, conclude, then, that the application of this substance was the source of his hair irritation?
“ANSWER: Well, I would have to assume that it was.
“QUESTION: Based on those assumptions?
“ANSWER: Based on those assumptions.”
I am well aware of the general rule stated in the majority opinion that the fact that injury follows the use of the product is not of itself alone a basis for a finding of proximate cause. It is also a general rule for which citation is unnecessary, and that is that producing cause can be proved by circumstantial evidence. In my opinion the circumstantial evidence that the product was defective is overwhelming. The favorable evidence shows plaintiff used the product as directed and suffered his injuries. The favorable evidence ruled out all of the other possible causes of these injuries.
In my opinion the evidence is as strong, if not stronger, than the evidence in both Herfy’s Corporation v. Marilyn Collins, Docket No. 7905 (Tex.Civ.App. — Beaumont, January 13, 1977) (unreported), and Hebert v. Loveless, 474 S.W.2d 732 (Tex.Civ.App.— Beaumont 1971, writ ref’d n. r. e.). Those opinions came out of this court, and in neither ease was there any evidence as to *125what was wrong with the food eaten by the plaintiffs. The plaintiffs ate food and suffered injuries; and the defect in the food was thereby established by circumstantial evidence. I would apply the same rule to the case before us.
In a concurring opinion it is stated that to adopt a rule as set forth in this dissent would make the manufacturer an insurer. Although that might not be a bad rule and the next step in products liability law, I am not prepared to go that far. I suggest only that the defectiveness of a product may be proven by circumstantial evidence as established in each case. This is not a new statement of law in products liability cases. Even a casual reading of a well written opinion by Justice Keith in Hebert v. Loveless, supra, shows this matter is discussed at length. The author of that opinion cites Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546 (Tex.1969), and Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969), neither of which is a food case. Justice Keith quotes from Darryl as follows:
“ ‘To exclude circumstantial evidence that the product was defective at the time of the sale would frustrate the beneficial purposes of the doctrine. It would be equally difficult, if not impossible, for the plaintiff to rebut by direct evidence all of the conceivable possibilities which would account for the defective condition other than the existence of the defect at the time of the sale. Such direct evidence should not be required, particularly when dealing with a latent defect.’ ”