CHADICK, Chief Justice.
In the trial court the parties, Haggar Company as plaintiff, and United States Fire Insurance Company, as defendant, submitted this case upon an agreed statement of facts. The trial judge rendered a take nothing judgment and the Haggar Company has perfected an appeal .
The agreed statement of facts, with some matter of slight pertinence excised, is as follows, to-wit:
'COMES NOW the Plaintiff and Defendant in the above captioned cause, by and through their attorneys of record, pursuant to Rule 263, Texas Rules of Civil Procedure, and file this their Agreed Statement of Facts, which shall constitute the record of the above cause. Said parties hereby stipulate as follows for the purpose of this trial only:
'On or about July 17, 1971, Plaintiff suffered a loss in the amount of $12,097.75 resulting from the theft of its trailer loaded with slacks which was parked alongside Plaintiff's warehouse at 6112 Lemmon Avenue, Dallas, on the rear parking lot owned by Plaintiff. None of the slacks which were stolen have ever been recovered. Said loss was an insured loss under the terms of the insurance policy issued to Plaintiff by
Defendant on October 1, 1970, which in full force and effect on July 17, 1971. * * *
'The property which is insured by said insurance contract is primarily men's clothing, both piece goods and finished products. When this property is being transported, it is placed on shelves inside large boxes equipped with rollers. Each box has its own identifying number painted on it and its own padlock. These boxes are transported between various manufacturing plants and Plaintiff's warehouse in Dallas by tractor-trailers owned by Plaintiff.
'The slacks which were stolen were assembled by Duncan Manufacturing Company, Duncan, Oklahoma. The Plaintiff's tractor-trailer loaded with slacks left Duncan, Oklahoma on Friday, July 16, 1971, driven by William M. Dyson, an employee of Plaintiff. When Mr. Dyson arrived outside Plaintiff's warehouse at 6115 Lemmon Avenue, Dallas, Texas, the doors of the loading dock were closed. Since Plaintiff's Receiving Department closes at 4:30 P.M., trucks often come in too late for the boxes to be moved inside Plaintiff's warehouse; and, although Plaintiff has no written policy concerning such situations, the procedure which was customarily followed at the time of this loss was for the driver to open the doors of the trailer and back it up to the closed door of the loading dock. With regard to such shipments this is as far as the trailer goes. The tractor was then uncoupled and pulled away to a point alongside but inside the fence at the rear parking area. The last person to leave the premises after 4:30 P.M., which in this case was not Mr. Dyson, then locks the gate in the cyclone fence which surrounds the rear parking lot. This fence that is attached to the warehouse and surrounds the rear parking lot, which includes the area where the trailers are backed up against the loading dock, is entirely on the Plaintiff's property. The loading dock is on the inside of the building; so, when the trailer is backed up to one of the doors it is almost touching the back wall. In this position, access to the inside of the trailer can be gained only by moving it or by unlocking and opening the loading dock door from inside the building . This is the procedure which Mr. Dyson followed on the evening of July 16, 1971. When he had done this, he had discharged his personal responsibility with respect to the contents of the trailer, and in fact if the Receiving Department had been open, Mr. Dyson would have done nothing differently since it is the responsibility of the warehousemen to unload the trailer.
'When a trailer is left parked in this position, the contents are rolled off the truck and into Plaintiff's warehouse on the next working day by employees in Plaintiff's warehouse after they unlock and open the loading dock door from inside the warehouse. As the boxes are rolled into Plaintiff's warehouse, Plaintiff's Receiving Clerk, Harvey F. Roberts, is responsible for checking the numbered boxes against the box numbers on the bill of lading, which is carried inside the trailer. However, since the Receiving Department is not open on Saturdays, the boxes in the trailer which Mr. Dyson parked next to the unloading dock on Friday, July 16, 1971, could not be rolled into Plaintiff's warehouse and checked against the bill of lading the next morning. The trailer was stolen either late Saturday evening or early Sunday morning by a party or parties unknown who coupled one of the tractors on the lot to the trailer and drove through the locked gate of the cyclone fence surrounding the Plaintiff's rear parking lot. When the tractor-trailer was subsequently recovered, four of the boxes had been opened and the slacks which were therein, having a value of $12,097.75, were missing and have never been recovered.
'Thus, if the slacks were still in due course of transit within the terms of the insurance policy at the time of the theft, Plaintiff is entitled to recover $12,097.75, less the $5,000.00 deductible. If the slacks were not still in due course of transit at the time of the loss, the $25,000.00 deductible provision is applicable and Plaintiff will not be entitled to recover any part of its $12,097.75 loss.'
Were the slacks In due course of transit at the time of loss? This is the issue submitted by the agreed statement. An agreed case is considered to have the...
