B-135289, NOV. 9, 1959

B-135289, NOV. 9, 1959

TO MR. E. F. MCMILLAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1959 (WITH ENCLOSURES), REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 28, 1959, B-135289, TO RUTHERFORD FREIGHT LINES, INC. IN THAT DECISION WE SUSTAINED OUR SETTLEMENT OF MAY 6, 1958 (TK-600499), WHICH DISALLOWED THE CARRIER'S CLAIM FOR $4,427.76, PRESENTING AN AMOUNT WHICH HAD BEEN COLLECTED BY DEDUCTION BY THE DEPARTMENT OF THE ARMY TO RECOVER THE VALUE OF 30 BALES OF SOCKS LOST BY THE CARRIER FROM A SHIPMENT OF CLOTHING TRANSPORTED IN FEBRUARY 1945, FROM JEFFERSONVILLE, INDIANA, TO BELLBLUFF, VIRGINIA, UNDER GOVERNMENT BILL OF LADING WV-6538522.

AS IN YOUR PRIOR SUBMISSIONS, TO ESTABLISH THE DELIVERY OF THE 30 BALES OF SOCKS TO THE RICHMOND ARMY SERVICE FORCES DEPOT, YOU RELY ON AN APPARENTLY CLEAR DELIVERY RECEIPT; THAT IS TO SAY, THE SIGNED ORIGINAL DELIVERY RECEIPT, POSSESSED BY THE CARRIER, DOES NOT SHOW THAT ANY EXCEPTIONS WERE TAKEN ON DELIVERY OF THE SHIPMENT. BUT OTHER EVIDENCE IN THE FILE, SUCH AS GOVERNMENT BILL OF LADING WV-6538522, SHOWING THE SHORT DELIVERY, THE ORIGINAL FREIGHT BILL (PRO. 501992), SHOWING THE SIGNATURE OF TRUCK DRIVER SOUR BEER AND THE ANNOTATION "30 TO FOLLOW," AND THE FORM ENTITLED "REPORT OF CONDITION OF TRUCK SHIPMENT," DATED FEBRUARY 15, 1945, ALSO SHOWING THE SIGNATURE OF TRUCK DRIVER SOUR BEER AND "SHORT 30 CTNS," CLEARLY OUTWEIGHS THE EVIDENTIARY SIGNIFICANCE OF THE CLEAR DELIVERY RECEIPT.

YOU REFER TO THE FOLLOWING SENTENCE WHICH IS CONTAINED IN A LETTER DATED JANUARY 21, 1947, ADDRESSED TO YOU, FROM LT.COL. OLSEN: "YOU HAVE ALSO BEEN SHOWN A FORM UTILIZED BY THE RICHMOND ASF DEPOT WHICH IS SIGNED BY THE DRIVER ON 15 FEBRUARY 1945 AS AN ACKNOWLEDGMENT OF 30 CARTONS SHORT.' ENCLOSED WITH YOUR LETTER WERE COPIES OF A "FORM," ALLEGED TO BE THE FORM REFERRED TO IN THE QUOTED SENTENCE, WHICH YOU SAY REFUTES LT.COL. OLSEN'S STATEMENT THAT THE SIGNATURE ON THE FORM IS AN ACKNOWLEDGMENT OF 30 CARTONS SHORT. IT SEEMS, HOWEVER, THAT THE FORM REFERRED TO BY LT.COL. OLSEN IS R.A.S.F.D. FORM NO. 1019 QM--- REPORT OF CONDITION OF TRUCK SHIPMENT, A COPY OF WHICH IS ENCLOSED. AS CAN BE SEEN, THAT FORM IS "AN ACKNOWLEDGMENT OF 30 CARTONS SHORT.'

YOU REFER ALSO TO THE DATA RELATING TO AN INSPECTION OF THE INVENTORY RECORDS AT THE RICHMOND ARMY SERVICE FORCES DEPOT, WHICH IS REFERRED TO IN A STATEMENT HEADED "ADDITIONAL FINDINGS AND RECOMMENDATIONS" DATED MARCH 22, 1945, AND SIGNED BY CAPTAIN THOMAS S. LLOYD, SURVEYING OFFICER, AND WHICH YOU URGE TENDS TO SUPPORT THE FACT THAT THE 30 MISSING BALES OF SOCKS WERE LATER DELIVERED TO THAT DEPOT. THIS CONTENTION, HOWEVER, WAS CONSIDERED AND ANSWERED IN OUR DECISION OF JANUARY 28, 1959. IT SEEMS SUFFICIENT TO STATE THAT EVEN IF THE REPORT SUGGESTS THAT THERE MAY HAVE BEEN COVERAGES ON SOME DELIVERIES, SUCH A FACT WOULD NOT SUPPORT A CLAIM THAT DELIVERY OF THESE PARTICULAR BALES OF SOCKS HAD BEEN MADE.

YOUR LETTER OF JULY 14 DOES NOT PRESENT ANY SUBSTANTIVE EVIDENCE SERVING TO RELIEVE THE CARRIER OF LIABILITY FOR THE VALUE OF THE 30 BALES OF SOCKS, LOST BY THE CARRIER FROM THE SHIPMENT TRANSPORTED UNDER GOVERNMENT BILL OF LADING WV-6538522. IN THESE CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN RECOMMENDING FAVORABLE CONSIDERATION OF A PROPOSAL FOR SETTLING THIS CASE ON A COMPROMISE BASIS. ACCORDINGLY, THE CONCLUSION REACHED IN OUR DECISION OF JANUARY 28, 1959, IS ..END :