On Rehearing.
We feel warranted in presenting further our convictions that this cause should be reversed and remanded in view of appellees’ motion for rehearing.
Bearing in mind that this is an appeal from the action of the trial court in discharging the jury and rendering judgment in favor of the defendants at the close of plaintiff’s testimony, the evidence in favor of plaintiff must be given full credence, excluding all adverse testimony or inference in derogation thereto, in support of plaintiff’s cause of action. The plaintiff City of Dallas brought this suit to recover damages on account of material deterioration in the quality and value of 334 cases of eggs, occurring from the date defendant Milum accepted the eggs, March 5, 1944, until plaintiff, on August 15, 1944, removed the eggs from storage, as the result of the failure of the defendant warehouseman to exercise such care in regard to same as a reasonably careful owner of similar goods would exercise. Chapter 2 of Title 93, art. 5568 et seq.; Chapter 4, Title 93, art. 5612 et seq., Vernon’s Ann. Civ.St. arts. 5568 et seq., 5612 et seq.
Plaintiff alleged that on March 5, 1944, the defendant Dallas Bonded Warehouse, *838owned and operated by Phil J. Milum, was a public warehouse chartered under and by virtue of the above cited statutes, and was exercising the privileges granted, and assuming the obligations as therein provided; and further plaintiff specially alleged that said defendant warehouseman contracted and agreed to keep and care for plaintiff’s eggs in the usual and customary manner of storage in such warehouses, and to deliver the eggs at such times as the City should call for them; that said defendant agreed to inspect said eggs which they received for storage and to notify plaintiff in the event the same were not kept in good condition, and to turn the eggs periodically while in storage; that the said defendant failed to inspect plaintiff’s eggs when he accepted same and, in any event, failed to give plaintiff any notice whatsoever as to the condition of plaintiff’s eggs, failed to turn the eggs and in the exercise of his duty as a public warehouseman, breached his contract to properly care for said eggs. And, in the alternative, plaintiff repeating in detail the statutory obligations and responsibilities that the defendant Milum had assumed under the law, supra, and breached the terms of his duty therein provided; and, in addition thereto, plaintiff alleged that said defendant' failed in the particulars enumerated in our original opinion. The defendants severally answered by general denial and specially pleaded that the condition of the eggs at the time of their withdrawal was not due to any negligence or breach of contract on the part of the' defendant warehouseman, but such deterioration was the natural result to such eggs in storage, and especially so when stored for such long period of time; that the eggs stored were of that particular class of eggs, such as rapidly deteriorate in quality through operation of natural causes.
The evidence discloses that on March 5, 1944, Mr. Dysart, purchasing agent for the plaintiff City of Dallas, delivered 500 cases of “Grade A Eggs” to defendant’s warehouse plant in the City of Dallas and they were placed in cold storge by the defendant Milum; that in April, following, the plaintiff made withdrawals from the number of cases on deposit, and the eggs were then found to be in quality of Grade A eggs, the same as when first delivered to said cold storage plant; and that on August IS, 1944, the remaining eggs were found to be deteriorated and rotten, wholly unfit for human consumption. There is further testimony in the record that the natural deterioration of eggs such as were delivered by plaintiff to the defendant Milum for storage, from date of delivery to date of withdrawals, about six months, would be about 10 percent; and that the reasonable market value of such eggs when delivered to the warehouse was $9.90 per case; and, "if such eggs had been handled and kept with ordinary care by the defendant Milum in his warehouse, less deterioration, would be approximately $9.00 per case.”
Evidencing the facts, supra, a Mr. Hern-don, after qualifying as an expert egg and poultry dealer for 30 years, in response to questions, testified:
“Q. Are you familiar with the market price of eggs in Dallas Texas * * * in 1944? A. Yes * * *
“Q. I will ask you if you know the length of time that eggs are ordinarily left in storage? A. Six or eight months, before much deterioration; they begin to deteriorate after six months if they are not processed out, and those were not.
“Q. I will ask you to state whether the six or eight months period would present anything different except the natural deterioration ? A. I would say after the end of six months, probably eight months, 10 percent.
“Q. I will ask you whether or not there is any difference in the market value between eggs such as are set out here and eggs that may only be used, a certain percent for canning purposes ? A. Yes, there may be some difference in the market value
“Q. Mr. Herndon, assuming that 600 cases of eggs as set out by the grading certificates which were handed to you yesterday (Grade A eggs) arrived in Dallas, Texas, on or about March 6, 1944; that 100 cases of eggs were withdrawn from the car and found to be in good condition and fit for human consumption, which was the *839market value of eggs in Dallas, Texas, March 6, 1944 * * * In connection with your answer, Mr. Herndon, you will take into consideration the natural deterioration of the egg's for this period of time * * * State your answer. A. In March we had $9.00 a case for eggs in Dallas County, Texas * * *
“Q. Assuming that the other 500 cases of eggs that were placed in storage — assume they were placed in storage, I will ask you the market value of eggs in Dallas, Texas, on August 15, 1944, if such eggs had been handled and kept with ordinary care by the defendant Milum in his •warehouse, subject to natural deterioration? (Italics added.) A. We were paying $9.-90.
“Q. Are you taking out natural deterioration? A. No, sir, that’s our buying price here.
“Q. Less natural deterioration, what was the price, what would it be ? A. From March to August I think 10 percent, about six months approximately.
“Q. Less 10 percent? A. Yes * * * approximately $9.00.”
Mr. Dysart, after relating that he delivered to said defendant for storage 500 cases of eggs and in April 1944 made withdrawals therefrom, testified in answer to questions:
“Q. I will ask you if you know the amount of money which was paid to Mr. Milum for the storage of these eggs after August' 15, 1944? A. $146.30, according to the records of our City.
“Mr. Akin : We object, the,records would be the best evidence.
“The Court: Do you know that yourself? The Witness: Yes.
“The Court: Did you issue the check? The Witness: No, sir, I took the auditor’s records.
“The Court: The objection is sustained, the records would be the best evidence.
“Mr. Chapman: The plaintiff excepts.
“The Court: Do you know independent of the record? The Witness: No, only that we had something over 300 cases in there and were paying at the rate of 10 cents per case. Of course some were being withdrawn, just how many we were paying on at that time, I don’t know.
“The Court: The objection is sustained.
“Mr. Chapman: The plaintiff excepts.”
It may be said, although immaterial on this appeal, that the action of the court in sustaining the objection of the defendant leveled at the testimony of Mr. Dysart in reference to the check, was not error; but it will be seen that there was no motion made to expunge the testimony from the record, or consideration of the jury, and that no objection was made to Mr. Dysart’s testimony that the City “had something over 300 cases” in storage with said defendant, on which the City was paying storage at the rate of 10 cents per case. The rule of practice in this state is that it was incumbent upon the defendants after the. testimony was elicited and before the jury, to move the court to instruct the jury to disregard such testimony; hence, no motion having been made, the testimony, notwithstanding the objection, established the facts related as effectively as such would have been otherwise established.
R.S. art. 5632 declares that “A warehouseman shall be liable for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise, but he shall not be liable, in the absence of an agreement to the contrary, for any loss or injury to the goods which could not have been avoided by the exercise of such care.” This statute is declaratory of the common law rule. Under this rule, liability for the loss of or damage to goods stored for hire, is that of a bailee for the mutual benefit of bailor and bailee, and depends upon prudence, diligence and good faith in the safe storage of goods. Exporters’ & Traders’ Compress, etc., v. Bargainer, Tex.Com.App., 45 S.W.2d 563; Morgan & Bros. v. Missouri K. & T. Ry. Co. of Texas, 50 Tex.Civ.App. 420, 110 S.W. 978, writ of error refused. The rule as relates to cold storage ware-housemen’s liability for damage of perishable goods in storage, is correctly stated in 43 T.J. 957, sec. 41: “The duties and liabilities of a cold storage warehouseman *840are the same as those of general public warehousemen except as general rules are qualified by the perishable nature of the goods or their susceptibility to deterioration. The general duty is to deliver the goods to the depositor or other person entitled, in the condition in which they were received, less their ‘natural and inherent deterioration.’ " The case of Belle Springs Creamery Co. v. Schultz, Tex.Civ.App., 69 S.W.2d 564, opinion by this court, is cited in support of the text supra. That rule is applicable in the instant case: To the extent of 10 percent “natural and inherent deterioration” which the evidence shows that the eggs suffered naturally for the time they were in storage, the said defendant is not liable therefor, but the defendant Milum’s liability is not saved for the 90 percent deterioration of the eggs which the evidence shows would not have occurred if such eggs had been handled and kept with ordinary care by the defendant Milum in his warehouse (Herndon’s testimony, supra). The above cited text writer (43 T.J. 958) recognizes exceptions, stating: “However, this exception does not save a warehouseman from liability where deterioration is hastened, is proximately caused by, or is contributed to by negligence in failing to maintain an equal distribution of the proper temperature to all the goods, or in improperly storing them.” Citing for authority in support of the text, Southern Ice & Utilities Co. v. Stewart, Tex.Civ.App., 15 S.W.2d 132, error dismissed. Likewise, in the case at bar, there would be no presumption that the bad condition of the cold storage eggs resulted from defendant’s negligence, if on trial of the cause evidence would have shown that the full deterioration was due to some other cause. “The owner of stored goods which have deteriorated or decayed through natural and inherent causes has the burden, in an action against the warehouseman for damages, of proving the extent of such natural and inherent deterioration; especially is this so where the goods were in storage for so long a time that manifestly the full extent of the injury was not and could not have been, caused solely by the negligence of the warehouseman.” 43 T.J. 966. sec. 48.
In the case of Hislop v. Ordner, 28 Tex.Civ.App. 540, 67 S.W. 337, 338, the plaintiff and defendant were in the positions of bailee and bailor, as in the case at bar. Suit was for damages for the negligent death of a horse bailed to defendant. The court said: “Ordinarily negligence is never to be presumed, but must be proven like any other substantive fact, and the burden of proof is upon the plaintiff. But when the property is lost or injured while in the exclusive custody of the bailee, his servant or agent, it is incumbent upon the bailee to prove that the loss or injury was not occasioned by the negligence of himself, or his servants of agents. 3 Am. & Eng. Enc. Law (2d Ed.) p. 750, and cases cited; Pusey v. Webb, [2 Pennewill, Del., 490], 47 A. 701. The reason of the rule is apparent. The bailee has the sole possession and custody of the chattel bailed. He cannot return the article to the bailor in a damaged condition, or not return it at all, and by his silence defeat a recovery for the damage because of the bailor’s inability to prove how the damage or loss happened. Although the burden of proof may rest eventually upon the plaintiff to establish his cause of action, until some reason is given for the injury to or loss of the property the bailee should properly be held answerable therefor. Rutherford v. Krause, [55 App.Div. 210], 66 N.Y.S. 781." See 5 Tex. Jur. 1039, sec. 29; Huie v. Lay et al., Tex. Civ.App., 170 S.W.2d 823; Mecom v. Vinton, Tex.Civ.App., 191 S.W. 763.
On this record, we are convinced that the action of the trial court in discharging the jury and rendering judgment in favor of the defendants should be reversed and cause remanded for a new trial; accordingly appellees’ motion for rehearing is overruled.