On Rehearing.
YOUNG, Justice.Upon reconsideration of this record conclude that an issue of negligence h been raised by the testimony, resolved by the trial court in favor of plaintiff, in this: Defendant contended that his duty to exercise ordinary care as regards the bailed property terminated at closing time, 7:30 P.M., after which any car left on lot was at owner’s risk. However, plaintiff did not know this, and within two hours the car was stolen. During such interval, under the circumstances, defendant owed plaintiff’s property some measure of protection; and it became a question of fact determinable by court or jury of whether the safeguards extended by defendant during the entire period of bailment were commensurate with his continuing duty to exercise ordinary care. I therefore concur in the conclusions of Associate Justice LOONEY on all points discussed in his dissent on original submission, and join with him in an order affirming the judgment under review. Appellee’s motion for rehearing is sustained.
BOND, C. J., dissents, adhering to the views expressed in original opinion. BOND, Chief Justice(dissenting on rehearing) .
The right of the bailee to make a contract exempting him from liability due to his negligence or the negligence of his servants has been in many of the States the source of apparent conflicting decisions. In many of the opinions where the question has been discussed, the direct question was not involved. In the case of Munger Automobile Co. v. American Lloyds of Dallas, Tex.Civ.App., 267 S.W 304, the Waco Court of Appeals had before it a case in which the Munger Automobile Company was a bailee for hire of an automobile left with it for repairs and was lost by theft. One of the issues discussed in that opinion was the exclusion of evidence showing the general method which the bailee had adopted and which was in operation in the handling of cars left with it for repairs, among which, by way of special defense, it had posted in a conspicuous place in its garage where said automobile was delivered, in large letters, the sign “Not Responsible for Cars or Parts in Case of Fire or Theft.” The owner of *273the automobile did not see nor was his attention called to such sign. The sign was only a precautionary measure of conducting the defendant’s garage business. The court said: “The weight of authority seems to hold that, where there are no statutory provisions to the contrary, a contract made between the bailee and bailor, by which the bailee relieves himself from liability due to his or his employees’ negligence, is valid, at least as. against all but gross negligence. Page on Contracts, par. 766; World’s Columbian Exposition v. Republic of France [7 Cir.], 96 F. 687, 38 C.C.A. 483; Wells v. Porter, 169 Mo. 252, 69 S.W. 282, 92 Am.St.Rep. 637; Terry v. Southern Ry. Co., 81 S.C. 279, 62 S.E. 249, 18 L.R.A.,N.S., 295; Coffield v. Harris, 2 Willson, Civ.Cas.Ct.App. § 315. * * * We can see no valid reason for denying parties who receive automobiles for repair the right to make a contract limiting their liability in case the cars should be stolen. Automobiles have become almost the universal mode of transportation, and necessarily in the handling of automobiles for repair there is more or less danger of loss by theft or fire, even when handled with ordinary care.”
In the dissenting opinion of Justice LOONEY, concurred in later by Justice YOUNG, on appellee’s motion for rehearing, is cited the case of Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133, as authority in this case. That opinion supports the contention here of appellant. Gus Schulze had delivered to the Compress Company 19 bales of cotton for storage. The Company delivered to him a receipt in which it agreed “to redeliver the cotton to the legal holder of the receipt, or pay market value therefor, acts of Providence or fire damage excepted.” The cotton was destroyed by fire from unknown cause. Schulze brought suit on the expressed contract, made no allegations as to negligence on the part of the warehouse company. The Commission of Appeals, approved by the Supreme Court, said: “It is possible that there are sufficient facts in this case upon which it may be inferred that the warehouse company did not use ordinary care in the manner in which it kept its premises, but there is no evidence upon which to base a finding that the fire, in question in 'this case was the proximate result of such cause.” So, in the case at bar, appellant may have been guilty of negligence in omission, that is, in failing to have doors, shutters or barriers on his garage, or to have a watchman on duty to prevent theft, but there is no evidence by which the jury could infer that the theft of appellee’s automobile was the result, or proximately resulted, from such acts of omission. There is no evidence of active negligence on the part of appellant, or his servants, that caused the theft. The theft of the automobile occurred at nighttime, long after the closing hours of his garage, when appellant and all of his employees had left the place of their employment. The building was not equipped with door, shutters or barriers, and no fact or circumstance is shown which would justify a finding that appellant should have had a watchman to keep vigilant watch over appellee’s automobile, or cause door, shutters or barriers installed.
Then, again the majority cites the case of Rhodes v. Turner, Tex.Civ.App., 171 S.W.2d 208, 210, as being “very much akin” to the case at bar. It will be seen in the cited opinion that Turner and Rhodes were bailor and bailee respectively of an automobile owned by Turner. The suit is bottomed on active negligence of Rhodes and his employees, in that, “the defendant failed and neglected to keep proper watch over and care for the car and as a consequence of the negligence and carelessness of defendant, plaintiff’s car was taken from the parking lot or driven away without the defendant’s employee, to whom it had been delivered, knowing what became of it.” The testimony in the cited case shows &at the automobile was stolen during storaj' hours, in the day-time; that it was the duty of Rhodes’ attendant “ ‘to take care of cars when they went in there, to park them and protect them so far as they could protect them a* all times.’ * * * ‘to park cars, get oat cars when the customers come, and to watch the lot.’ ” The evidence further shows that the attendant failed to watch the car, moved it to an un-secure place in the lot, left the key in the *274ignition lock, and, when Mr. Turner came for his car, the attendant could not find it, and could give no information as to when and how or by whom the car was stolen. The jury found the defendant guilty of negligence in the particulars ai-'■eged. There was no allegation that defendant was guilty of negligence in fhe manner in which he maintained the open garage, hence the jury did not have to infer an ultimate fact of negligence proximately to cause the theft. That case has no remote “kin” to the instant case. If, in the case at bar, Ablon had an attendant on duty — a night watchman, or doors, shutters or barriers on the garage, and the automobile was stolen under facts and circumstances as to show a lack of ordinary care on the part of the bailee, then the jury could have reasonably found him guilty of actionable negligence. The doctrine of Res Ipsa Loquitur has no application to the suit here under review.
Ordinary bailment lies in contract, either expressed or implied, and it is usually held that the parties to such contracts are at liberty to fix the terms and mode of accomplishing the bailment, but such must not of course be against public policy or positive law. In the case at bar the evidence shows that the bailor did not see the signs nor did he read the limitation of the bailee’s liability on the back of the stub that was handed him when he delivered the car. In fact he did not go into the garage to ascertain the mode and manner which the appellee had adopted and which was in operation; nor did he give the bailee or his servant a reasonable opportunity to inform him of the conditions and customs which defendant had adopted. He drove his automobile to the entrance of the garage and there delivered it to an employee of the bailee, accepted the ticket or stub which fixed the terms and responsibility of the bailment, put the stub or ticket in his pocket and went his way.
Manifestly, in pleadings and proof, plaintiff rests his case on specific negligence, acts of omission of the defendant in failing (1) to have a watchman on duty; (2) to have the garage or storage space enclosed by doors, shutters or barriers, as to prevent strangers from entering the premises and removing plaintiff’s automobile. It is un-controverted that plaintiff’s automobile was stolen without the knowledge of the defendant or any of-his servants, and that defendant was not guilty of active negligence which caused or proximately caused the automobile to be lost by theft. No presumptive negligence is indulged to establish defe dant’s liability. Hence the burden of showing negligence and that the negligence caused, or proximately caused, the loss of the automobile by theft, rested upon the plaintiff. The mere omission to have a watchman, or to have the doors, or shutters, or barriers to close the garage, or to have the entrance locked, do not, without more, establish actionable negligence. To establish these averments as constituting actionable negligence, the plaintiff must go further and prove that such conditions or a state of circumstances connected with the garage or with the doing of the acts, as would justify the inference that a man of ordinary prudence, acting under such conditions and circumstances, would not have done the acts in question. Under ordinary conditions it may well be regarded as an act of prudence to leave the garage space open for the convenience of defendant’s customers, as the evidence here shows that customers did leave their cars there after closing hours with instructions to leave the key conveniently hidden about the car. There is no evidence in this record that any automobile has ever been stolen from this garage, or from any other garage in that vicinity, or that any such garage keeper has employed night watchmen to guard one or two cars that perhaps might be left in the garage over night, under unavoidable circumstances. I think it would be a policy of extraordinary duty for one to employ a night watchman or exercise overdue care for one customer during the night on uncertainty of his return. It may be safe in saying that ordinary care does not require that a watchman be kept constantly in and about every building during the hours of darkness for the purpose of protecting property against fire, thieves or other cUngers. There is no room for reasonable minds to differ upon these questions.
It is axiomatic that evidence may be introduced to show all of the conditions *275which surround or affect the acts of omission to have been negligently done or omitted, as well as all of the circumstances connected with the performance or omission of the acts in question. From a consideration of such conditions and circumstances, the jury must determine whether ordinary care required the acts to be performed or omitted, as the case may be, and thus decide whether or not the acts in question were negligently done or omitted as alleged. The evidence clearly shows that the relation of bailor and bailee existed and that the bailee failed to return to the bailor the automobile entrusted to his care. Thus such may have been sufficient to make out a prima facie case in favor of appellee, if it did not also appear without dispute that the automobile was stolen. In order to show that the acts or omissions complained of were negligently done or omitted, it was necessary for plaintiff to prove not only that such was done or omitted, but also to show the conditions and circumstances which would justify the jury in finding that such precautions were reasonably required in the exercise of ordinary prudence under the conditions and circumstances shown. Indeed, it is the province of the jury, as the trier of the facts, to determine whether or not ordinary care required a watchman be kept in and about the garage, or required doors, shutters or barriers to be on the building; but such are ultimate facts which must be found as a result of inference from conditions and circumstances, and unless the conditions and circumstances shown by the evidence are of such a character as that the ultimate facts may be rightfully and reasonably inferred therefrom, the finding of such ultimate facts is not sustained by evidence. A jury cannot be justified in finding that ordinary care required certain acts to be done, or that certain precautions should have been taken, unless such inference can be rightfully and reasonably drawn from the circumstances and conditions shown by the evidence.
The evidence here does not show that defendant operated the garage in question differently from any other garage in that vicinity, or that other garages took the precautions to have doors, shutters or barriers on their buildings to prevent theft; or that they kept a watchman on or about their premises as a precaution to prevent fires, theft or other dangers. I think it was incumbent upon the plaintiff to show some circumstance or condition upon which the jury could base an inference that such precautions were essential to the exercise of ordinary care. No such showing having been made, therefore there is no evidence to support the findings of the inferential fact that ordinary care required appellant to keep the garage locked or keep a watchman in and about the building. If such conditions and circumstances existed as to render it necessary in the exercise of reasonable care to have a night watchman, or locked garage, such should have been shown by the evidence. In 26 A.L.R. 260, the text relates: “The mere failure of a warehouseman to employ an inside night watchman or to maintain burglar alarms in the warehouse, neither of which was customary for warehouses in that vicinity, was held in Battelle v. Mercantile Warehouse Co., 1910, 139 App.Div. 649, 124 N.Y.S. 135, insufficient to justify an inference of negligence, so as to render the warehouseman liable for loss of property in the warehouse, which was stolen by burglars, where the warehouseman did employ a night watchman in common with other merchants and ware-housemen in that vicinity.” In 43 T.J. 956, sec. 40, the text writer lays down the rule applicable here: “A warehouseman who has stored goods in the customary manner and has exercised the usual care in protecting them is not responsible for their loss by theft. But if the theft is due to his negligence he is of course liable.”
It clearly appearing from the record that the case was tried and decided on the theory that defendant was guilty of negligence of omission in failing to have doors, shutters, etc., on the garage, and in not having a night watchman about the premises, and, that loo without any proof of any condition or circumstance showing such to have been actionable negligence, the cause should be reversed and, in the light of the evidence, if as a matter of law judgment should not be rendered, then the case should be remanded to the court below for new trial.