(dissenting).
I dissent from the decision of the majority in reversing this cause on the facts and in rendering judgment for the appellant. As disclosed in the majority opinion, the case is one of bailment for hire — ■ was tried without the intervention of a jury and resulted in judgment below in favor of H. W. Hawker, the bailor, against Bernard Ablon, bailee, for the sum of $1,018.09. Findings of fact and conclusions of law *269were neither requested by counsel nor filed by the court; but the record contains a statement of the facts which, in my opinion, reveals ample evidence showing that appellant bailee failed to exercise reasonable care under the circumstances to properly care for the car and safeguard it against theft. In the situation presented, every reasonable inference of fact supported by evidence will be drawn in support of the judgment below. See 3 Tex.Jur., Appeal and Error-Civil, sec. 747, p. 1059; Houston Oil Co. v. Biskamp, Tex.Civ.App., 99 S.W.2d 1007.
The material facts are these: On September 29, 1944, at about 4:30 P.M., ap-pellee Hawker, a resident of the town of Teague, Freestone County, drove his automobile into the Republic Garage, on Pacific Avenue in the City of Dallas, owned and operated by Bernard Ablon, the appellant; delivered same for storage to an attendant in the garage, who gave appellee an identification check containing certain printed matter stating, among others, that the owner of the garage would not be responsible for loss by fire, theft, etc. Without reading the printed matter, appellee put the check in his pocket and left the garage without reading any of the signs hanging in the garage stating that it closed for business at 7:30 P.M. and that cars left thereafter would be at owner’s risk; nor did he read the sign stating that the owner would not be responsible for loss by fire, theft, etc., nor were these signs or the contents thereof brought to appellee’s attention at the time. Appellee was a stranger, resident of another county, had not previously patronized appellant’s garage; did not know and was not informed, and certainly was not visited with constructive notice, that the garage would be left open at night without shutters, chain or other barrier across the entrance, and without an attendant or watchman, to properly safeguard cars in the garage from being stolen.
It was shown that on the occasion in question, the garage closed at 7:30 P.M. and the entire personnel, except appellant, left the garage; he remained until about 7:45, placed the keys belonging to appel-lee's car (which was left on the main or first floor) on the sunshield or visor of the car; also a note was left in the car directing appellee where to deposit the charges due.
About 9:00 P.M., same evening, appellee returned to the garage for his car; the garage was deserted and the car could not be found. At about 7:00 A.M. next morning appellee was informed by policemen of the City that they found the car on a street the night before; that it had been stolen from the garage and badly wrecked. Two girls were in the car when found by policemen, but their boy companions had fled. Appellee found his car in a garage where evidently the officers had placed it, and as heretofote mentioned, in a badly wrecked condition.
The facts in this case, in my opinion, bring it under the doctrine announced in Exporters’ & Traders’ Compress, etc., v. Schulze, By the Commission, approved by the Supreme Court, 265 S.W. 133. I realize that under the facts and circumstances, the burden rested upon ap-pellee to show that theft .of the car in question was the result of appellant’s failure to exercise reasonable and ordinary care for its protection against theft and resulting damage; and I submit, without discussing the facts, that this burden was fully discharged by the facts just detailed.
A recent case very much akin to the instant case, decided by the Fort Worth Court of Civil Appeals, in which the bailee was held liable, was Rhodes v. Turner, 171 S. W.2d 208. Owing to the dissent of McDonald, C. J., the bailee sought to have the points of dissent certified to the Supreme Court, as provided in Rule 463, and brought a mandamus proceeding for that purpose. The motion for leave to file an original petition for mandamus to compel the court to issue the certificate was denied (1) because it appeared from the facts stated in both majority and dissenting opinions that the case turned on the sufficiency of evidence to support the judgment; and, furthermore, it did not appear that the majority opinion was incorrect. See Rhodes v McDonald, 141 Tex. 478, 172 S.W.2d 972.
As heretofore mentioned, at the time ap-pellee delivered his car to the garage, he was given an identification check containing printed matter reading as follows: “Republic Garage. Safe inside parking. *2701312 Pacific Avenue. Dallas. Not responsible for damage by fire, theft, storm, accident or articles left in car. Telephone R-0454. 7800.” Construing this language, the majority, in my opinion, gave to it a breadth, comprehension and significance not warranted by the restrictive terms used. Referring to this check, the majority states : “The stub or claim check given to Mr. Hawker limited the bailee’s liability; in effect, took into consideration the condition of the premises and manner and method of operating the garage. Indeed, such did not imply limitation for gross negligence, or negligence done outside of the usual and customary way of handling such business. The mere fact that the bailor failed to read the liability limitation plainly printed on the stub, or to observe the signs plainly visible in the garage, does not, in the least, excuse him from culpable assumption of the risk because of appellant’s omission to have the premises secure from thieves. Undoubtedly appellant had a legal right to operate an open garage and, in doing so, limit his liability by contract for damage occasioned by theft or fire. He did so, and gave ap-pellee the conditions by which he accepted the bailment. Courts cannot make contracts for the parties. We think that the undisputed evidence, as a matter of law, acquits appellant of actionable negligence, and that the judgment of the court below should be reversed and here rendered for appellant. It is so ordered.”
The doctrine announced by the Supreme Court, answering certified questions in Langford v. Nevin, 117 Tex. 130, 298 S.W. 536, 537, in my opinion, is a complete answer to the reasoning just quoted from the majority opinion. The Supreme Court said: “Whether or not one engaged in conducting a garage, as a business, for the storage or repair of automobiles for people generally, for compensation, may, without contravening public policy, contract for exemption from the exercise of ordinary care with respect to the safety of an automobile intrusted to him in the course of the business, has not been settled in this state. A disposition of the present case does not require a determination of the question, and for this reason an opinion in that regard is reserved. Granting, however, that such an exemption may be effected by special contract stipulation in a case of this character, the language of the stipulation, must be clear and unambiguous. Ordinarily, in cases of this kind, men do not intentionally subject their property to the hazard of being lost through lack of ordinary care to prevent the loss. A provision of the bailment contract which subjects the property to such a hazard is unreasonable. Therefore a pro-vision which is relied upon by the bailee as exempting him from the exercise of ordinary care with respect to the safety of the property will be strictly construed by the courts, and will not be interpreted as effecting the exemption if any other meaning may reasonably be ascribed to the language employed. In cases of bailment having the general aspects of this one, a contract provision, which purports to exempt the bailee from liability for loss due to particular causes other than the negligence of the bailee, does not in any respect exempt him from the implied obligation of ordinary care which his relation to the bailed property, as bailee for hire, imposes upon him.” (Citing numerous authorities.) Therefore, I submit that as to the liability of appellant, the judgment of the trial court is amply sustained by evidence.
As the majority reversed and rendered the case on the facts, denying liability, the other questions presented by appellant were not discussed or disposed of. If I have successfully sustained the dissent and shown that the facts fully warranted the trial court in finding liability, the other two questions should be disposed of, which I shall now endeavor to do.
In points “Third” and “Fourth” appellant contends that his request for permission to withdraw his announcement with leave to-amend, in order to bring in the American. Automobile Insurance Company as a new party, should have been granted and that the court erred in refusing such request.
The record discloses that the trial of this case was begun on March 11, 1946,. and some evidence was introduced at that time; later, on March 15th, additional evidence was heard. It was shown that ap-pellee held a policy issued by the American. *271Automobile Insurance Company which provided for subrogation “in the event of any payment under this policy, etc.” Appellee testified that the insurance company paid him $993, the amount of loss sustained by injuries to his automobiles; and that any recovery in the case, except $25, would belong to the insurance company. It was not disclosed that any formal assignment of the claim was made by appellee to the insurance company, but it seems that payment of the loss by the company operated as an equitable assignment. 26 C.J., § 621, p. 458; 46 C.J.S., Insurance, § 1212, p. 181.
After appellee testified, as just stated, appellant, claiming surprise, asked permission to withdraw his announcement; that he be permitted to amend his pleadings in order - to make the insurance company a party to the suit; and at this juncture also demanded a jury. These requests were denied by the court.
Appellant’s claim of surprise, in my opinion, is not well founded, as .the record discloses that on February 2, 1945, over two months before the institution of the suit, and over a year before it was tried, the adjuster for the insurance company informed appellant by letter that the company had paid appellee $993 loss under the policy, and claimed subrogation to that extent; thus, with knowledge of these facts and that the insurance company was equitable owner pro tanto of the claim sued on, appellant took no action under either Rule 39 or Rule 93, but acquiesced in the prosecution of the suit by appellee for and on behalf of the company to the extent of the payment made. Under these circumstances, I am of opinion that the request of appellant came entirely too late.
It is obvious, in my opinion, that under the facts and circumstances, the insurance company, having paid appellee his loss to the extent of $993, held an equitable assignment pro tanto (Magnolia Pipe Line Co. v. Security Union Ins. Co., Tex.Civ.App., 37 S.W.2d 1062) ; and in such a situation it was permissible for appellee, in his own name, to prosecute the claim to judgment for and on behalf of the insurance company. A holding to that effect was made by the San Antonio Court of Civil Appeals in San Antonio A. P, Ry. Co. v. D. M. Picton & Co., 111 S.W.2d 842, writ refused by the Supreme Court.
In his “Fifth” point, appellant contends that the court erred in awarding to appellee $1,018.09 damages, because not authorized by the evidence.
P. J. Tolliver, the only witness who gave testimony as to the value of the car, after qualifying, testified that its reasonable market value in Dallas before it was injured was $1,850, and that after the injury it was worth only $575. After giving this testimony, the witness was questioned as to the ceiling price on the car at the time, as fixed by the OPA, and answered that he had data showing the ceiling price, but not with him at the time, and would have to guess. Asked to guess, answered: “Around $1,700—between $1,600 and $1,700.” And later in his testimony, said: “I know approximately” what the ceiling price was. The above is the sum and substance of the testimony in regard to the value of the automobile in question.
Appellant, referring to the well known rule for measuring damages in such a situation as here presented, contends that there was no evidence indicating where the damage, that is, injury to the car, occurred. The undisputed evidence, in my opinion, leaves no doubt in regard to this matter. The car was deposited at the garage about 4 :30 P.M. September 29, 1944; was in the garage at 7:45 P.M., but at 9:00 o’clock was missing and was not seen by appellee until 7:00 o’clock the next morning. It was in a garage in the City of Dallas, in a badly wrecked condition, where, evidently, it had been placed by City officials, as appellee was informed by a policeman that the car was found on the street the night before in its wrecked condition. There was no evidence to the contrary.
Appellant further contends that the OPA ceiling price should control or measure the damages and that such price was unknown to the witness who testified. In my opinion, the evidence as to the reasonable market value of the property before and after the injury, in the City of Dallas, was established by the evidence heretofore set out. I do not think the ceiling price *272set by OPA h,ad any bearing whatever on the case. The purpose of the Emergency Price Control Act, SO U.S.C.A.Appendix, § 901 et seq., is set out at great length in the Act itself; however, its paramount aim, as construed by the courts, both State and Federal, was to protect the nation’s economic structure against inflation by placing a ceiling limit on prices in sales of commodities or transactions reasonably within the scope and meaning of the term “sales,” and was never intended to place a ceiling on recoveries under insurance policies, or for injury to, or destruction of property by wrongdoers.
In the case of General Exchange Ins. Corporation v. Tierney, 152 F.2d 224, 225, the Fifth Circuit Court of Appeals used the following pertinent language: “The War Powers Act, 50 U.S.C.A.Appendix, § 631 et seq., was for the purpose of curbing and preventing inflation. To accomplish such purpose it fixed a ceiling price on the class of cars here under consideration of $2,000.-00 for purchase or sale. It nowhere attempts to regulate or control adjustments for insurance loss.' Moreover, it does not attempt to measure or fix value in setting up a price to be paid when such cars are bought and sold.” The Supreme Court of Iowa made a similar holding in the case of Ross Produce Co. v. Thompson, Iowa, 20 N.W. 2d 37; the Criminal Court of Appeals of Oklahoma made a similar holding in the case of Fugate v. State, 158 P.2d 177, 157 A. L.R. 1299; and in the recent case of Betts Automotive Service v. Hitchcock, 197 S.W.2d 878, the Amarillo Court of Civil Appeals gave a construction to the Act of Congress in accord with the decisions of the Federal and State courts heretofore cited.
For the reasons hereinbefore stated, I dissent from the decision of the majority, believing that appellant’s points of error should have been overruled and that the judgment of the trial court should have been affirmed.