joined by Justice Brewster, dissenting.
In my opinion there is but one controlling question in this case and that question is: Was the action of the trial court in instructing a verdict for the depositors of wheat in respondent’s elevator correct? To determine the correct answer to this involves certain other inquiries. The evidence is undisputed that respondent was charged 12 cents per bushel for storage of the grain belonging to the petitioners herein. In my opinion, this makes him a public warehouseman and subject to the provisions *151of the laws governing public warehousemen. Article 5568, Revised Civil Statutes, 1925, provides:
“Any person, firm, company, or corporation who shall receive cotton, wheat, rye, oats, rice, or any kind of produce, wares, merchandise, or any personal property in store for hire, shall be deemed and taken to be public warehousemen * *
The Legislature could not have expressed more clearly their intention to make every person who stores wheat for hire a public warehouseman. The business of storing commodities of citizens of our state is a business affected with a great public interest. Longwell Transfer v. Elliott, Tex. Civ. App., 267 S.W. 346, writ refused; Exporters & Traders’ Compress & Warehouse Co. v. Bargainer, Texas Com. App., 45 S.W. 2d 563. The Act of the 36th Legislature (1919) in amending the definition of a public warehouseman so as to make it read substantially as it does at the present time has the following emergency clause:
“In view of the importance of this Legislation to the State of Texas, and in view of the fact that the existing law regulating warehouses and warehousemen is confusing and is inadequate to meet the requirements of commerce and properly safeguard the handling of cotton and other products stored in warehouses, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be and the same is hereby suspended and that this Act take effect and be in force from and after January 1, 1920, and it is so enacted.” Section 4, House Bill No. 63, Acts 36th Legislature, 2nd Called Session, Chapter 54, page 138.
I do not believe a person or corporation can exempt itself from the provisions of our warehouse laws merely by failing to give the bond or take the other steps required by the law. To hold a party could so exempt itself would be to make the law wholly ineffective and innocuous. In any event, respondent became a bailee for hire and as such he owes certain duties and obligations to his depositors. Exporters & Traders’ Compress & Warehouse Co. v. Bargainer, supra; Kimbell Milling Co. v. Greene, Tex. Civ. App., 162 S.W. 2d 991; affirmed, 141 Texas 84, 170 S.W. 2d 191; 56 Am. Jur. 331, Section 21.
The evidence is undisputed that respondent had stored in this elevator 3,165 bushels and 40 pounds of wheat belonging to him and that all of the wheat stored was put into a common mass. When a warehouseman mingles his own goods (in this *152case wheat) with like goods (wheat) belonging to other depositors, the warehouseman must suffer the loss as to any deficiency, and the other depositors shall be paid in full from said mass. 56 Am. Jur. 39, Section 168. The warehouseman may not dispose of any part of the mingled goods for his own benefit so as to leave an amount insufficient to satisfy outstanding receipts. 56 Am. Jur. 415, Section 206. It is just and right that the above rules of law be applicable to a case, as this one, when the warehouseman is to receive pay for storing the goods. He is paid for taking the risk of a shortage, and so long as there are goods to return to the depositors the amount the warehouseman has received, any loss should fall on the warehouseman. In this case the shortage was only 2,533 bushels of wheat, while respondent had in the common mass 3,165 bushels. When for any cause, not occasioned by the fault of the depositors, the amount of mingled goods on hand becomes less than that for which there are outstanding receipts, the warehouseman is required to account for the deficit. 56 Am. Jur. 397, Section 166.
The warehouseman must use ordinary care to preserve the property which is the subject of the bailment. When he cannot return the property, the bailor only has to show delivery of the property and that it was not returned on his demand. This makes a prima facie case of liability on the part of the bailee, or warehouseman, unless the goods were destroyed by fire, in which in stance bailor must prove the negligence of the bailee. In 5 Tex: Jur. 1039, Bailment, Section 29, the rule is stated as follows:
“When a bailor seeks to recover the value of property lost while in the hands of the bailee it is not incumbent upon him to allege or prove fraud or negligence; he need only allege and prove delivery to the bailee and the bailee’s failure or refusal to return the property, or its return in an injured condition, for there is a presumption that loss or injury to bailed property was caused by the negligence of the bailee, and the absence of fraud and negligence on the part of the bailee is a matter of defense. After the bailor makes the necessary allegations the burden devolves upon the bailee to defend by showing that the property was not lost or injured by reason of his negligence.
“ ‘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.’ ” •
*153The most recent pronouncement of this rule by this Court is the case of Trammell v. Whitlock, 150 Texas 500, 242 S.W. 2d 157, wherein we said:
“The defendant-petitioner is correct in his contention that the burden of proof on the whole case, including the issue of negligence, is on the respondent bailor, but as stated in Wig-more on Evidence 3rd Ed., Sec. 2508, Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee’s liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.’ Without prejudice to the burden of proof being at all times on the bailor, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, not existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be based on the just and common sense view that the party in possession or control of an article is more likely to know and more properly charged with explaining the damage to it or disappearance of it than the bailor who entrusted it to his care * *
The above is particularly appropriate to the facts of our case, for all respondent says in his pleadings, or his testimony, amounts to no more than that he does not know how the shortage occurred, but that when he delivered the wheat to Hughes, he (respondent Klinke) was short some 2,500 bushels.
As the trial court gave an instructed verdict in favor of the depositors (petitioners herein) for the difference in value between the number of bushels of wheat their scale tickets showed they deposited with respondent, and the amount of money he had paid them, we must view the evidence in this case most favorable to respondent. Let us review the evidence to see if respondent offered any evidence to show he was not negligent with regard to the shortage in the wheat, keeping in mind that when the depositors proved they had scale tickets issued by respondent for the wheat claimed by them, and showed further that respondent had accounted to them for only a part of such wheat, they had made a prima facie case against respondent, and the burden of proceeding with evidence was on him. There was no dispute as to the fact that the depositors had the scale tickets issued by respondent for the total amount of wheat *154claimed by each of them. Respondent so plead and so testified. He plead and testified that these tickets represented the weights as weighed on his own scale. He further pleaded that he was “the owner of a standard set of platform scales which scales had been duly tested and proven to be correct, and said weights of each and all of the above described parcels of wheat was carefully weighed cmd the weights checked and the total amount of wheat placed in (the) elevator and contained therein, according to said tested scales, aggregated a total of 19,204 bushels and 35 pounds.” This total amount was the amount claimed by all depositors plus respondent’s own wheat. He nowhere alleges that the scale on which the wheat was weighed in for storage in his elevator was incorrect; but, on the contrary, all his allegations are that the scale was correct, and Hughes’ scale was incorrect.
Let us look at the stipulation as to “the facts material for the determination of the issues being appealed herein.” Respondent testified: “I had in use at my elevator a Standard Howe scale and this scale had been tested by a licensed weight and scale tester on the 15th day of June, A. D. 1949, and certified as being in good shape, and I began the placing of wheat therein for the several parties herein as it was brought to this elevator in trucks beginning on the 25th day of June, A. D. 1949 and continuing from day to day until July 7, A. D. 1949 when the total amount was placed therein.” He further testified that according to his scale tickets issued for wheat weighed on the above scale, each depositor had deposited in his elevator for storage the amount of wheat for which each depositor had sued. And further he testified that he weighed on his scale only the last three loads of the wheat hauled from his elevator and delivered to Hughes’ elevator, and that there was a discrepancy in the weights of the two sets of scales. He used this discrepancy to figure the amount of wheat for which he paid each depositor. It is to be noted that respondent never did testify that his scale was incorrect at any time — either in June of 1949 when the wheat was weighed in for storage (and only 15 to 25 days after his scale had been declared accurate by a licensed weight and scale tester), or at the time the wheat was delivered to Hughes’ elevator some nine months thereafter (March 5-8, 1950), or at the time of the trial on August 6-15, 1951. Nor is there any testimony from any source that respondent’s scale was incorrect in June, 1949. I do not believe that testimony of a discrepancy in the scales of respondent and Hughes some nine months later, is sufficient to raise an issue as to the correctness or in*155correctness of respondent’s scale at the time the wheat was weighed in for storage. Whether Hughes’ scale was correct or incorrect was not an ultimate issue on respondent’s liability to petitioners. The ultimate issue was whether or not respondent’s scale was correct when depositors’ wheat was weighed on the scale. The only evidence in the record shows that respondent’s scale was correct at such time. This, in brief, was the state of the record facing the trial court at the close of the evidence. I do not believe it would have justified any verdict save for the depositors.
When respondent testified that his scale was found to be correct by a licensed weight inspector on June 15, 1949,1 believe the law to be that the scale continues to be presumed correct until evidence is introduced to the contrary. There being no evidence to the contrary in this record, it was established, as a matter of law, that the scale tickets issued by respondent Klinke correctly reflected the amount of wheat he received for storage, and he is liable to each depositor for such amount. Wigmore on Evidence, 3rd Ed., Vol. 2, 413, Section 437; 20 Am. Jur. 205, Section 207; Commercial Credit Corporation v. Smith, 143 Texas 612, 187 S.W. 2d 363. I believe our quotation in Trammell v. Whitlock, supra, governs this case:
“As pointed out by Judge Learned Hand in the Alpine Forwarding Co. case (Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir. 60 F. 2d 734, 736), The presumption on which the bailor may rely is a mere rule for the conduct of the trial. It puts upon the bailee the risk of a directed verdict if he does not meet it, but it does no more; once he has done so, it disappears from the case. Thus,, it can never concern the jury.’ ”
The respondent having failed to introduce any evidence to rebut this presumption of the correctness of his scale, it is my opinion that the trial court correctly instructed a verdict for the depositors. No depositor should be deprived of his goods except upon clear evidence. The warehouseman is paid for risk taking. If he does not want to take the risks incident to accepting products for storage, he need not carry on such business. To permit an elevator storage warehouseman to escape liability merely by proving he came out short at the end of his season, in my opinion, would destroy the protection which I believe the law places around a depositor. The depositor has no control over how his goods are protected or handled, and if a warehouseman accepts the goods for storage he should be accountable for them, *156except for such defenses as the law of bailments has long recognized. Merely saying “I do not know what happened or how it happened that I am short” is not enough. In this case the warehouseman had sufficient wheat to account to each of his depositors. Under the facts of this case, if any loss is to be suffered the warehouseman, and not the depositor, should suffer such loss.
I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.
Opinion delivered January 28, 1953.
Rehearing overruled March 4, 1953.