B-150943, MAY 2, 1963

B-150943: May 2, 1963

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19. ALTHOUGH ACKNOWLEDGED TO HAVE BEEN DAMAGED IN TRANSPORTATION. WAS NOT REPAIRED BY THE GOVERNMENT BUT WAS DISCARDED AS HAVING NO VALUE. YOU URGE THAT SINCE THE TESTER WAS NOT REPAIRED. THAT IT WAS IN FACT. THE BILL OF LADING SHOWS THAT THERE WAS DELIVERED TO THE BRASWELL HALL FREIGHT LINES (MOTOR) AT THE MUNICIPAL AIRPORT. WERE MARKED "FOR SERVICE STOCK.'. - REFLECTS CLASS 4920 TESTER WAS REQUISITIONED AS A SERVICEABLE UNIT WITH SERVICEABLE VALUE OF $2. THE RECORD CLEARLY SHOWS THAT AT THE TIME THIS SHIPMENT WAS MADE. IT WAS THE INTENTION OF THE GOVERNMENT OFFICERS THAT THIS TESTER. WAS TO BE PLACED IN STOCK AS SERVICEABLE WITH A SERVICE VALUE OF $2.

B-150943, MAY 2, 1963

TO WEST BROS. MOTOR EXPRESS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1963, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM 1918-61-PRO. 1 453179 4-7-60, FOR $781, ADMINISTRATIVELY DEDUCTED TO RECOVER THE ESTIMATED COST OF REPAIRING ONE 4920-342-4014 TESTER DAMAGED IN TRANSIT WHILE BEING TRANSPORTED FROM MUNICIPAL AIRPORT, TULSA, OKLAHOMA, TO BROOKLEY AIR FORCE BASE, BROOKLEY, ALABAMA, UNDER BILL OF LADING AF-5448629, IN APRIL 1960.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT THE JET ENGINE TESTER, ALTHOUGH ACKNOWLEDGED TO HAVE BEEN DAMAGED IN TRANSPORTATION, WAS NOT REPAIRED BY THE GOVERNMENT BUT WAS DISCARDED AS HAVING NO VALUE. YOU URGE THAT SINCE THE TESTER WAS NOT REPAIRED, THE GOVERNMENT HAD NO NEED FOR IT, AND THAT IT WAS IN FACT, VALUELESS AND THEREFORE THE GOVERNMENT HAD NOT BEEN INJURED OR SUFFERED ANY LOSS. YOU CITE THE CASE OF ILLINOIS CENTRAL RAILROAD CO. V. CRAIL, D/B/A P. MCCOY FUEL CO., 281 U.S. 57, FOR THE PRINCIPLE THAT COMMON LAW REMEDIES "SHALL AFFORD ONLY COMPENSATION FOR THE INJURY SUFFERED.' YOU REQUEST ALLOWANCE OF THE AMOUNT DEDUCTED.

THE BILL OF LADING SHOWS THAT THERE WAS DELIVERED TO THE BRASWELL HALL FREIGHT LINES (MOTOR) AT THE MUNICIPAL AIRPORT, TULSA, OKLAHOMA, TEN PIECES, INCLUDING THREE CASES OF 4920 TESTERS IN APPARENT GOOD ORDER AND CONDITION, TO BE FORWARDED AND DELIVERED TO THE COMMERCIAL TRANSPORTATION OFFICER, BROOKLEY AIR FORCE BASE, MOBILE, ALABAMA. THE BILL OF LADING CLEARLY SHOWS THAT THE ARTICLES TRANSPORTED, INCLUDING THE THREE TESTERS, WERE MARKED "FOR SERVICE STOCK.' THE AIR FORCE REPORT OF SURVEY OF THE DAMAGE TO THE TESTER SHOWS THAT THE REQUISITION AND SHIPPING DOCUMENT--- (REQUISITION NO. OB 6563-0089-5018/--- REFLECTS CLASS 4920 TESTER WAS REQUISITIONED AS A SERVICEABLE UNIT WITH SERVICEABLE VALUE OF $2,179. THUS, THE RECORD CLEARLY SHOWS THAT AT THE TIME THIS SHIPMENT WAS MADE, IT WAS THE INTENTION OF THE GOVERNMENT OFFICERS THAT THIS TESTER, ALONG WITH THE TWO OTHERS, WAS TO BE PLACED IN STOCK AS SERVICEABLE WITH A SERVICE VALUE OF $2,179. ON RECEIPT OF THIS TESTER AT DESTINATION IN A DAMAGED CONDITION IT WAS ESTIMATED BY EXPERIENCED ACCESSORIES INSPECTORS OF THE ELECTRICAL ACCESSORIES BRANCH, MAINTENANCE ENGINEERING DIVISION, AT BROOKLEY AFB, ALABAMA, THAT THE COST OF PUTTING THIS TESTER IN AS GOOD A CONDITION AS WHEN RECEIVED BY THE ORIGINATING CARRIER WAS $781. THAT AMOUNT WAS DEDUCTED IN MAKING PAYMENT OF AMOUNTS DUE YOU, SO AS TO AFFORD THE UNITED STATES COMPENSATION FOR THE INJURY SUFFERED.

THERE IS NOTHING IN THE RECORD OF THIS SHIPMENT THAT WOULD INDICATE THAT THE TESTER WAS VALUELESS AT THE TIME IT WAS SHIPPED. IN FACT THE MARKING OF THIS SHIPMENT AS "FOR SERVICE STOCK" WITH "A SERVICE VALUE OF $2,179," CONCLUSIVELY SHOWS OTHERWISE. YOU ACKNOWLEDGE THAT THIS TESTER WAS DELIVERED AT DESTINATION IN A DAMAGED CONDITION. AS STATED BY YOU THE CRAIL CASE PROVIDES THAT "THE BASIC PRINCIPLE UNDERLYING COMMON LAW REMEDIES (IS) THAT THEY SHALL AFFORD ONLY COMPENSATION FOR THE INJURY SUFFERED.' HOWEVER, THE FACT THAT PROPERTY WHICH IS INJURED OR DESTROYED BY THE WRONGFUL OR NEGLIGENT ACT OF ANOTHER HAS NO MARKET VALUE DOES NOT RESTRICT THE RECOVERY TO NOMINAL DAMAGES ONLY, ITS VALUE OR THE PLAINTIFF'S DAMAGES MUST BE ASCERTAINED IN SOME OTHER RATIONAL WAY, AND FROM SUCH ELEMENTS AS ARE ATTAINABLE. STANDARD OIL CO. V. SOUTHERN PACIFIC COMPANY, 268 U.S. 146; KENNEDY V. TRELEAVEN, 175 PAC. 977, AND 15 AM.JUR. (DAMAGES) 534, SEC. 125. IN SUCH INSTANCES, THE COST OR ESTIMATED COST OF REPAIRS IS THE BEST EVIDENCE OF THE DAMAGE SUFFERED. AUSTIN V. TENNESSEE BISCUIT CO., 52 SO.2D 190; HOOPER, MCGRAW AND CO., INC. V. KELLY, 125 A. 779; AND TAXICAB CO. V. HAMBURGER, 125 A. 914. FURTHER, IT IS NOT A CONDITION PRECEDENT TO RECOVERY FOR ITEMS OF DAMAGE FOR REPAIRS THAT THE GOVERNMENT SHALL HAVE ACTUALLY EXPENDED THE SUMS OR INCURRED THE LIABILITY THEREFOR. BERGERON V. ROBERSON, 71 SO.2D 332; CHAMBERS V. CUNNINGHAM, 5 P.2D 378; AND HARRY HOENSTINE V. ROSE, 312 P.2D 514. THEREFORE THE FACT THAT THE AIR FORCE DID NOT ACTUALLY REPAIR THIS TESTER--- BECAUSE OF A DETERMINATION THAT IT WOULD NOT BE IN THE BEST INTEREST OF THE UNITED STATES TO MAKE SUCH AN EXPENDITURE--- DOES NOT LESSEN YOUR LIABILITY FOR THE ESTIMATED COST OF REPAIR.