DISSENTING OPINION
STEPHENSON, Justice.I respectfully dissent. I would hold that plaintiff proved a cause of action against both defendants on the basis of implied warranty because of public policy as expressed by the Supreme Court of Texas in Jacob E. Decker & Sons, Inc. v. Capps, (Tex.) 164 S.W.2d 828. I am aware that this is an extension of the rule of the Decker Case to a non-food case. The law I would apply to this case is set forth in The American Law Institute, Restatement of the Law (Second) Torts (1965) as follows:
Ҥ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractural relation with the seller.”
As to the holding by the majority opinion that no cause of action was proved as to Owens Tires, Inc., the primary point seems to be that the evidence shows the name of the company which sold the tire to the Land O’Pines Dairy Products Company was Owens & Carter Tire Company, and that the two, Owens Tires, Inc. and Owens & Carter Tire Company were not shown to be one and the same. I am of the opinion that this point was nothing more than an afterthought upon the part of this defendant. The record shows that plaintiff sued “Owens Tires, Inc.” as a Texas corporation doing business in Palestine, Anderson County, Texas. The plea of privilege filed by this defendant shows under oath that this defendant is a Texas corporation whose post office address is 410 East Spring Street, Palestine, Anderson County, Texas. The record also shows that Owens Tires, Inc. filed a cross-claim against Mich-lien Tire Company and Jack Skaggs, d/b/a Skaggs Rubber Company, containing the following allegations:
“III.
“Owens Tires, Inc. alleges that the tube in question was purchased by it from Jack Skaggs, d/b/a Skaggs Rubber Co., *590an authorized Michlien Tire Company dealer, and that the tube in question was delivered by the said Jack Skaggs, d/b/a Skaggs Rubber Co., to Owens Tires, Inc. in a cardboard container which was never opened by Owens Tires, Inc., its agents or employees, and subsequently in turn was sold and delivered to Land O’Pines Dairy Products Company in the same condition in which it was received by Owens Tires, Inc.
“IV.
“Owens Tires, Inc. alleges that in connection with its purchase of Michlien Tires and Tubes from Jack Skaggs, d/b/a Skaggs Rubber Co., that the said Jack Skaggs, d/b/a Skaggs Rubber Co., as an authorized Michlien Tire Company dealer, delivered certain specifications for Michlien Tires and tubes to Owens Tires, Inc. among which was the specification that for the particular tube in question, that the same was designed for 90 pounds per square inch. And in this connection, Defendant Owens Tires, Inc. alleges that if any of its agents or employees made representations as set forth in Plaintiff's Second Amended Original Petition, that they were only repeated statements made by agents or employees of Jack Skaggs, d/b/a Skaggs Rubber Co., an authorized Michlien Tire Company dealer.
“V.
“Owens Tires, Inc. alleges that under the circumstances surrounding this occurrence in question entitled this Defendant to recover full indemnity of and from the said Michlien Tire Company and Jack Skaggs, d/b/a Skaggs Rubber Co.”
Further, plaintiff testified that the salesman who sold the tube to Land O’Pines Dairy Products Company in Angelina County worked for Owens & Carter Tire Company. Then when the invoice was first offered in evidence the only objection made by the attorney for this defendant was that the tires were not identified. No complaint was made that the invoice showed the wrong name. Later when the invoice was further identified, it was admitted over the objection of counsel for this defendant, but once again the only objection was that there had not been a proper identification of the tire and tube. The invoice shows on its face: Owens & Carter Tire Co., 410 East Spring, Palestine, Texas and the check in payment of this invoice was made payable to the same name and address. This being the identical address swforn by this defendant to be its address. All of the evidence indicates to me that this defendant did business under the name of Owens & Carter Tire Company and that ample proof was made that this defendant sold plaintiff’s employer a defective tube which resulted in the damage suffered by plaintiff.
I would also hold that a cause of action was proved against the defendant Michlien. The tube was purchased through defendant Owens Tires, Inc., doing business as Owens & Carter Tire Company. The invoice specified the tube was a Michlien 8:25 X 20. The tube was delivered in a box bearing the trade name of Michlien. Plaintiff identified the tube as a Michlien tube. The tube bore the trade mark of Michlien. Plaintiff also testified he took the new tube out of the box and that this tube exploded as he was inflating it with air while mounting it and a Michlien tire on a wheel, causing his injury. Plaintiff further testified that the tube was delivered to him 2 or 3 weeks before the date of the injury and that it was stored under lock and key until this attempted use. Plaintiff testified he had mounted tires many times during the 13 to 16 months he had worked for his employer and was following the same procedure he had previously followed at the time of his injury. That he put 60 pounds of air in the tube and had checked it with a gauge just before the explosion. That the normal pressure to put in this size tube was 75 pounds. The witness Jenkins testified he arrived at the scene shortly after plaintiff was injured and found the Mich-lien tube was “busted at the seams”. That *591the tube had a 10 or 12 inch split in the seam. He identified it as a new Michlien Tube.
I do not believe that the issue as to the manufacturing of the tube by defendant Michlien was a disputed issue. Neither the pleadings nor the examination of the witnesses by the attorneys for this defendant gave any indication that Michlien was denying this fact. A fact issue was raised by all of the evidence set out above, and the trial court is presumed to have found that this defendant manufactured the tube in question by entering the order overruling its plea of privilege. I see no reason to apply a different rule of law to a brand on a product from that of a brand on a vehicle. Henderson Drilling Corp. v. Perez, Tex.Civ.App., 304 S.W.2d 172. I have concluded that the evidence in this case shows that defendant Michlien manufactured and sold a tube in a defective condition unreasonably dangerous to the user which reached the user without substantial change in the condition in which it was sold, and that plaintiff was injured because of the defect in the tube.
It is also clear that the type of cause of action that plaintiff was intending to prove on the hearings of the pleas of privilege, and which I concluded had been proved, was one based upon an implied warranty. This is made clear by the evidence offered by plaintiff to which there was no objection on that ground by the attorneys representing either of the defendants. The failure to object to this evidence would constitute a waiver of any variance between the pleadings and proof. Rule 90, Texas Rules of Civil Procedure. I would hold that the issue of implied warranty was tried by the expressed or implied consent of all of the parties even though not specifically plead. Rule 67, T.R.C.P.