(dissenting on rehearing).
These eggs had been shipped out of Derry, New Hampshire, by the War Food Administration, waybill dated February 19, 1944; arrived in Dallas March 5, and apparently turned over to the City for distribution to charitable and relief outlets through D. P. Dysart, its purchasing agent, who arranged with defendant for storage of *841the 500 cases. The shipment was given to the City of Dallas.
Upon reconsideration, I disagree with the majority judgment of reversal. In the first place, the suit was in the nature of a tort, against a public warehouseman, charging specific acts of negligence, and involved losses incident to storing of perishable goods. In such state of the pleading it is well settled that the doctrine of res ipsa loquitur has no application. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659; Universal Atlas Cement Co. v. Oswald, 138 Tex. 159, 157 S.W.2d 636. Neither is res ipsa loquitur applicable (presumption of negligence) as against a warehouseman who receives perishable goods in good condition but returns them in bad condition. Said this Court in Belle Springs Creamery Co. v. Schultz, Tex.Civ.App., 69 S.W.2d 564, 568, speaking through Justice Bond and quoting from Southern Ice & Utilities Co. v. Stewart, Tex.Civ.App., 15 S.W.2d 132, “It is true that although the eggs were delivered in fresh condition to appellant, the mere fact, standing alone, that they were redelivered to appellee in inferior condition, would not justify the presumption of negligence on the part of appellant. That rule does not apply to chattels which deteriorate or decay through operation of inherent or natural causes.”
Notwithstanding the principles just referred to and quoted, the majority now reverses the rule of liability relative to storage of a perishable commodity (carload of eggs) in the following language: “The delivery of property to a warehouseman for storage and the failure of such warehouseman to return the property, or if the property is returned in a damaged condition, the burden rests upon the warehouseman to show that the damage resulted without fault or negligence on his part. In absence of proof to the contrary, the presumption of negligence prevails in such cases." (Italics mine.) Of course, a warehouseman may be heldl liable for abnormal deterioration or decay of perishables proximately caused by improper storing or failure to maintain equal and proper temperature; 43 T.J., p. 958; in a cause of action so specifically pled and established, but we have no such case here under the complete record.
Secondly, the negligence alleged is that defendant allowed the temperature in storage room to rise, rendering the eggs unfit for human consumption on August 15, 1944 (date of loss); that he failed to turn the crates; stacked them upon the floor, allowing water to accumulate; storing potatoes, tomatoes and grapefruit in same room, etc. From a rather careful study of the statement of facts I have been unable to find a line of testimony in support of any of above charges. Highly material to defendant’s liability, was the amount of eggs withdrawn for account of Parkland Hospital from March 1944 to date of alleged loss; Miss Von Goertz, dietitian, testifying that the Hospital withdrawals in March, April, May and June were “from 70 to 80 cases a week.”* On this point the majority'opinion recites: “Plaintiff’s evidence admits that there were some withdrawals, but without the City records being available at the trial, the exact number of crates left with defendant after such withdrawals, and the exact amount of the City voucher given to defendant in payment for such storage, were not disclosed. However, there is evidence to the effect that there were in storage during the time the eggs were placed with defendant until they were withdrawn, 500 cases. Hence the amount of the voucher is only a matter of mathematical calculation, and, at least, there is evidence that the plaintiff suffered damage to the amount of 300 cases.” (Italics mine.)
By what process of “mathematical calculation” the jury could have determined the number of crates left in storage or amount of the voucher in connection with an unknown quantity of crates over a period of.' *842time not stated, I do not know. Testimony of Mr. Dysart on direct examination merely emphasizes the uncertainty:
“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 15th, 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 three hundred cases in there and were paying at the rate of ten cents per case. Of course, some were being withdrawn, fast how many we were paying on at that time, I don’t know.
“The Court: The objection is sustained.
“Mr. Chapman: The plaintiff excepts.” (Italics mine.)
There is no other testimony in the record bearing on the majority finding that “there is evidence that plaintiff suffered damage to the amount of 300 cases.” The Appellate Court in reviewing sufficiency of evidence on a question of fact, cannot consider heresay; Sinclair Prairie Oil Co. v. Perry, Tex.Civ.App., 191 S.W.2d 484; or excluded testimony; Supreme Council, etc., v. Landers, 23 Tex.Civ.App. 625, 57 S.W. 307; and see generally, 4 Tex.Dig., Appeal and Error.
The facts above outlined, in my opinion, amply warranted the peremptory instruction given.
Concerning proof of negligence, the August inspection referred to in majority opinion, was by Miss Von Goertz of a crate out of the hospital refrigerator that was wet and damp, eggs falling through upon lifting, she not knowing, except from hearsay, that they were from a storage source. Mr. Dysart was never in that part of defendant’s warehouse where City eggs were stored, knowing nothing about temperature of room; and there is no testimony of other perishables being in same vault with eggs. Defendant Milum, called by plaintiff, testified that the eggs in question were handled “just like you would store any other eggs;” stacked one case above the other, slats placed between floor and eggs, and between crates in stack; that air could circulate around the cases, “it being impossible to stack them otherwise;” that a special charge was made for turning eggs, which plaintiff had not arranged for, furthermore the eggs could “not have been turned.”
Without further analysis it thus occurs to me that, viewing the specific acts of negligence charged, in light of the proof adduced, plaintiff has wholly failed to establish defendant’s responsibility for these losses, except by way of mere surmise and conjecture. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.
It is interesting to note that plaintiff introduced in evidence portions of defendant’s abandoned pleading, which, if the City is bound thereby, Jenkins v. Tanner, Tex.Civ.App., 166 S.W.2d 167, Syl. 1, would acquit defendant of negligence in connection with the whole transaction. Paragraphs 14 and 16, in defendant’s first amended answer, read: “Your defendant says that his warehouse space which he had available was not designed for nor was said warehouse equipped for a long storage of eggs, and that this fact was communicated to the said Dysart prior to the storage of such eggs, and your defendant further says that the eggs when received by him were packed so poorly that many of the cartons and the containers were already torn, broken and ripped, at the time such carload reached his warehouse, and that some eggs in such cases and cartons were already broken and that many of the eggs were small, dirty and cracked, and all of such eggs were generally of an inferior quality. * * * Your defendant says that the cooler room in which the car or eggs in controversy were stored, ivas at all time maintained at a proper temperature to keep and preserve the eggs and that stored in said cooler room were about ten carloads of eggs, that all of said carloads of eggs *843have been withdrawn and that so far as known to your defendant, none of said carloads of eggs so withdrawn had spoiled or deteriorated.” (Italics mine.)
Appellant urges error in the court’s refusal to permit a reopening of the case for purpose of adducing further testimony. ■If I be correct in the conclusion that plaintiff did not make out a prima facie case after having been once accorded a right of reopening, then the trial court did not abuse his discretion in refusing to allow the case to be reopened a second time.
Appellant’s third amended petition was upon contract of storage, in the alternative for damages based on detailed charges of negligence resulting in total loss of 334 cases of eggs, valued at $4,175. At close of plaintiff’s evidence in chief, both defendants moved for an instructed verdict, which was granted; whereupon plaintiff moved to reopen the case for offer of additional evidence, which was granted. Further testimony was then had over 30 pages of the statement of facts, defendant Milum being recalled three times, Mr. Dysart twice. About 10:00 a. m., May 8, 1946, all parties again announced to the court that evidence was closed. On defendant’s insistence, plaintiff then announced to the court that it had elected to stand on its tort and negligence action; and counsel for all parties were instructed to return at 11:15 o’clock, when the court’s charge would be completed. At the appointed time the court openly announced his decision to enter judgment for defendant, making entry thereof upon the docket sheet, on the ground, among other things, that there was nothing in the record upon which the jury could find the number of cases lost. It was then that plaintiff’s counsel asked that the case be reopened a second time for the purpose of offering testimony on the foregoing primary issue.
Obviously, no abuse of discretion was involved in the court’s refusal to allow a further reopening; Puckett et al. v. City of Fort Worth, Tex.Civ.App., 180 S.W. 1115. If so, as suggested by appellee, then no court would be free from error, for had plaintiff been granted a second right to reopen, it could reasonably have requested a third right, etc., and thus there would be no finality to litigation. I conclude, therefore, that defendant’s judgment under the peremptory instruction given, should be affirmed.
It is proper to observe here that, attached to appellant’s motion for new trial, is the affidavit of Miss Von Goertz. It recites in part that she intended to testify at the trial that such constituted monthly instead of weekly withdrawals; in which connection it was the further testimony of Mr. Dysart that withdrawals for hospital use from defendant’s warehouse wore being March 0 and April 26, then withdrawing eggs from another shipment at the Hinckley Ice & Cold Storage Company from April 26 until they were all gone, “which was the latter part of August or September.”