B-185064, FEBRUARY 10, 1977, 56 COMP.GEN. 357

B-185064, FEBRUARY 10, 1977, 56 COMP.GEN. 357

MOBILE HOMES - TRANSPORTATION - DAMAGE, LOSS, ETC. - CARRIER'S LIABILITY THE LAW PLACES BURDEN ON CARRIER TO ESTABLISH NOT ONLY THE GENERAL TENDENCY OF A MOBILE HOME TO BE DAMAGED IN TRANSIT, BUT THAT DAMAGE WAS DUE SOLELY TO THAT TENDENCY. PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. - "INHERENT VICE" DEFINITION OF "INHERENT VICE" INDICATES THAT LOSS IS CAUSED IN COMMODITY WITHOUT OUTSIDE INFLUENCE, AND COURTS HAVE SO HELD. PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. - MOBILE HOMES - CARRIER'S RESPONSIBILITY FOR AVOIDANCE OF DAMAGE IF CARRIER KNOWS OR SHOULD HAVE KNOWN THAT GOODS DELIVERED TO IT FOR TRANSPORTATION ARE IN DANGER OF LOSS OR DAMAGE, LAW REQUIRES CARRIER TO USE ORDINARY CARE, SKILL AND FORESIGHT TO AVOID CONSEQUENCES. PROPERTY - PUBLIC - DAMAGE, LOSS, ETC. - CARRIER'S LIABILITY - BURDEN OF PROOF CARRIER HAS FAILED TO REBUT ITS PRIMA FACIE CASE OF LIABILITY FOR DAMAGE AND TO MEET ITS BURDEN OF PROOF THAT SOLE CAUSE OF DAMAGE WAS DUE TO AN INHERENT DEFECT. HOWEVER, AMOUNT OF DAMAGES IS IN ERROR AND IS TO BE ADJUSTED ACCORDINGLY.

IN THE MATTER OF CHANDLER TRAILER CONVOY, INC., FEBRUARY 10, 1977:

CHANDLER TRAILER CONVOY, INC. (CHANDLER), HAS REQUESTED REVIEW OF A SETTLEMENT ISSUED BY OUR CLAIMS DIVISION ON FEBRUARY 9, 1976 (CLAIM NO. Z- 2608885(3)). IN THE SETTLEMENT THE CLAIMS DIVISION DISALLOWED CHANDLER'S CLAIM FOR A REFUND OF $2,299, WHICH THE GOVERNMENT AS A SUBROGEE COLLECTED BY SETOFF FOR DAMAGE TO A MOBILE HOME OWNED BY A MEMBER OF THE MILITARY AND TRANSPORTED BY CHANDLER UNDER GOVERNMENT BILL OF LADING NO. F- 6530696.

THE MOBILE HOME WAS PICKED UP BY CHANDLER ON FEBRUARY 6, 1974, AT NOLANVILLE, TEXAS, AND DELIVERED IN A DAMAGED CONDITION TO ITS OWNER AT GRAY, KENTUCKY, ON FEBRUARY 12, 1974. WHILE CHANDLER ADMITS THAT THE MOBILE HOME WAS DAMAGED AT DESTINATION, IT CONTENDS THE DAMAGES WERE CAUSED BY INHERENT DEFECTS IN THE MOBILE HOME. AN INHERENT DEFECT IS ONE OF THE EXCEPTIONS TO A CARRIER'S COMMON LAW LIABILITY FOR DAMAGE TO PROPERTY. MISSOURI PACIFIC R.R. V. ELMORE & STAHL, 377 U.S. 134 (1964).

CHANDLER CONTENDS THAT STATEMENTS OF A MR. ALDRIDGE, WHO ON MARCH 30, 1974, PREPARED AN ESTIMATE OF DAMAGES (LATER REVISED), IS PROOF OF THE FACT THAT THE DAMAGES TO BE MOBILE HOME WERE CAUSED BY AN INHERENT DEFECT. MR. ALDRIDGE STATED THAT THE MOBILE HOME "HAD THE APPEARANCE OF OVER THE ROAD DAMAGE DUE TO LONG HOURS AND MILES OF CONTINUED ROAD SHOCK WHICH SO OFTEN HAPPENS ON LONG HAULS WITH MOBILE HOMES OF THIS SIZE." CHANDLER FURTHER STATES THAT THE ALDRIDGE MARCH 30TH ESTIMATE CONTAINS ADDITIONAL REPAIRS AND PARTS WHICH WOULD STRENGTHEN THE FRAME BEYOND ITS FACTORY SPECIFICATIONS, AND THAT SUCH EVIDENCE SUPPORTS CHANDLER'S CONTENTION THAT THE DAMAGES WERE DUE TO STRUCTURAL FAILURE.

CHANDLER ALLEGES THAT MR. ALDRIDGE'S STATEMENT SUPPORTS ITS ARGUMENT THAT THE MOBILE HOME WAS THE SOLE CAUSE OF ITS OWN DAMAGE. HOWEVER, THE STATEMENT IS ONLY AN OPINION ABOUT THE PROPENSITY OF MOBILE HOMES TO SUSTAIN DAMAGE WHEN TRANSPORTED A GREAT DISTANCE. THE LAW PLACES A BURDEN ON CHANDLER TO ESTABLISH NOT ONLY THE GENERAL TENDENCY OF A MOBILE HOME TO BE DAMAGED IN TRANSIT, BUT THAT THE DAMAGE WAS DUE SOLELY TO THAT TENDENCY. SEE WHITEHALL PACKING CO., INC., V. SAFEWAY, 228 N.W.2D 365 (WISC. 1975). FURTHER, MR. ALDRIDGE WAS INTERVIEWED BY A REPRESENTATIVE OF THE ARMY CLAIMS SERVICE AND STATED THAT THE ADDITIONAL WORK, WHICH WOULD STRENGTHEN THE FRAME BEYOND THE FACTORY SPECIFICATIONS, WAS NECESSARY IN THE EVENT OF ANOTHER MOVE. THUS, THE SUGGESTED ADDITIONAL WORK IS NOT PROOF OF AN INHERENT DEFECT IN THE MOBILE HOME. THE ADDITIONAL WORK WAS ELIMINATED IN A LATER ESTIMATE. WE NOTE ALSO THAT THE PRE-MOVE INSPECTION REPORT PREPARED BY CHANDLER'S AGENT INDICATES THAT THE FRAME WAS NOT IN A DAMAGED CONDITION AT ORIGIN.

IN MISSOURI PACIFIC R.R. V. ELMORE & STAHL, SUPRA, THE COURT STATES THAT "INHERENT VICE" MEANS ANY EXISTING DEFECTS, DISEASES, DECAY OR THE INHERENT NATURE OF THE COMMODITY WHICH WILL CAUSE IT TO DETERIORATE WITH A LAPSE OF TIME. THIS DEFINITION INDICATES THAT AN INHERENT VICE IN A COMMODITY WILL RESULT IN THE LOSS OF THE COMMODITY WITHOUT ANY OUTSIDE INFLUENCE. SEE SCHNELL V. THE VALESCURE, 293 U.S. 296, 305-306 (1934). IN FACT, IN THE CLOSELY RELATED INSURANCE FIELD THE COURTS HAVE HELD THAT THE TERM "INHERENT VICE," AS A CAUSE OF LOSS NOT COVERED BY THE INSURANCE POLICY, DOES NOT RELATE TO AN EXTRANEOUS CAUSE BUT TO A LOSS ENTIRELY FROM INTERNAL DECOMPOSITION OR SOME QUALITY IN THE PROPERTY WHICH BRINGS ABOUT ITS OWN INJURY OR DESTRUCTION. EMPLOYERS CASUALTY COMPANY V. HOLM, 393 S.W.2D 363 (CT. CIV. APP. TEXAS 1965); MAYERI V. GLENS FALLS INS. CO., 85 N.Y.S.2D 370 (SUP. CT. N.Y. 1948). THE MOBILE HOME WAS PICKED UP BY CHANDLER AND TRANSPORTED FROM TEXAS TO KENTUCKY, AND IT ARRIVED IN A DAMAGED CONDITION. IT FOLLOWS THAT AN EXTRANEOUS CAUSE, THE ELEMENTS OF THE TRANSPORTATION MOVEMENT, CAUSED ITS DAMAGE. THE MOBILE HOME WOULD NOT HAVE SUSTAINED DAMAGE HAD IT REMAINED AT ITS ORIGIN AND NOT BEEN MOVED. THUS, IT CANNOT BE SAID THAT AN INHERENT DEFECT WAS THE SOLE CAUSE OF THE DAMAGE.

WHEN A CARRIER KNOWS OR SHOULD HAVE KNOWN THAT GOODS DELIVERED TO IT FOR TRANSPORTATION ARE IN PERIL OR DANGER OF LOSS OR DAMAGE, THE LAW REQUIRES A CARRIER TO USE ORDINARY CARE, SKILL AND FORESIGHT TO AVOID THE CONSEQUENCES. LITTLE ROCK PACKING CO. V. CHICAGO B & Q R.R., 116 F.SUPP. 213 (W.D. MO. 1953). THUS, IF CHANDLER WAS OF THE OPINION THAT THE MOBILE HOME COULD NOT BE TRANSPORTED WITHOUT DAMAGE, IT COULD HAVE REFUSED TO DO SO. AND IF IT WAS KNOWN THAT THE MOBILE HOME WAS SUSCEPTIBLE TO DAMAGE, CHANDLER SHOULD HAVE TAKEN THE NECESSARY FORESIGHT TO AVOID THE CONSEQUENCES.

CHANDLER HAS FAILED TO REBUT ITS PRIMA FACIE CASE OF LIABILITY FOR DAMAGE AND TO MEET ITS BURDEN OF PROOF THAT THE SOLE CAUSE OF THE DAMAGE WAS DUE TO AN INHERENT DEFECT. HOWEVER, WE BELIEVE THAT THE AMOUNT OF THE DAMAGES IS IN ERROR.

THE RECORD CONTAINS AN ESTIMATE OF REPAIR THAT IS SUBSTANTIALLY LOWER ($1,500 TO $2,000) THAN THE ACTUAL AMOUNT OF THE CLAIM OF $2,299, AND SOME ADDITIONAL ITEMS ON THE ALDRIDGE MARCH 30TH ESTIMATE APPEAR TO BE EITHER THE RESULT OF PRE-EXISTING DAMAGE OR NORMAL MAINTENANCE OF A MOBILE HOME. ONLY THE COST OF THOSE REPAIRS WHICH ARE ATTRIBUTABLE TO THE DAMAGE MAY BE CONSIDERED. 22 AM.JUR.2D DAMAGES 148 (1965). ACCORDINGLY, WE BELIEVE THAT ONLY THESE ITEMS TAKEN FROM THE ALDRIDGE ESTIMATE SHOULD BE CHARGED TO CHANDLER: (TABLE OMITTED)

WE TODAY ARE INSTRUCTING OUR CLAIMS DIVISION TO REOPEN THE SETTLEMENT AND TO ALLOW CHANDLER $1,300 OF ITS CLAIM FOR $2,229 ($2,299 LESS $999), IF OTHERWISE CORRECT.