B-154968, DEC. 22, 1965

B-154968: Dec 22, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 6. YOU STATE THAT IN "A VERY SHORT TIME" YOU WILL FILE A CLAIM WITH OUR OFFICE FOR RECOVERY OF FUNDS ALLEGEDLY WRONGFULLY WITHHELD BY THE AIR FORCE TO RECOVER DAMAGES TO SERGEANT MCDOWELL'S MOBILE HOME. WE HAVE NOT RECEIVED YOUR CLAIM. DAMAGE CLAIMS INVOLVING THE MOBILE HOMES OF SERGEANTS SEIDER AND SLAUGHTER HAVE BEEN PENDING HERE SINCE MARCH 1964. WE HAVE DELAYED ACTION ON THESE CLAIMS IN ORDER TO GIVE YOUR COMPANY AN OPPORTUNITY TO PRESENT ANY EVIDENCE WHICH YOU MIGHT CONSIDER TO HAVE A BEARING ON THE MATTER. HAVE BEEN IN TOUCH WITH US. WE WERE FURNISHED A COPY OF A LETTER AND ENCLOSURES OF APRIL 28. OUR LAST CONTACT WITH YOUR LEGAL REPRESENTATIVE WAS ON MAY 24.

B-154968, DEC. 22, 1965

TO MORGAN DRIVE AWAY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1965, INFORMING US THAT THOMAS KILROY, ESQUIRE, OF THE LAW FIRM OF KILROY AND SULLIVAN, WASHINGTON, D.C., HAS BEEN RETAINED TO REPRESENT YOUR COMPANY IN CONNECTION WITH CLAIMS OF SERGEANTS SEIDER, SLAUGHTER, AND MCDOWELL FOR DAMAGES TO MOBILE HOMES TRANSPORTED BY YOUR COMPANY. YOU STATE THAT IN "A VERY SHORT TIME" YOU WILL FILE A CLAIM WITH OUR OFFICE FOR RECOVERY OF FUNDS ALLEGEDLY WRONGFULLY WITHHELD BY THE AIR FORCE TO RECOVER DAMAGES TO SERGEANT MCDOWELL'S MOBILE HOME. HOWEVER, AS OF THIS DATE, WE HAVE NOT RECEIVED YOUR CLAIM.

DAMAGE CLAIMS INVOLVING THE MOBILE HOMES OF SERGEANTS SEIDER AND SLAUGHTER HAVE BEEN PENDING HERE SINCE MARCH 1964. WE HAVE DELAYED ACTION ON THESE CLAIMS IN ORDER TO GIVE YOUR COMPANY AN OPPORTUNITY TO PRESENT ANY EVIDENCE WHICH YOU MIGHT CONSIDER TO HAVE A BEARING ON THE MATTER. SEVERAL OCCASIONS SINCE AUGUST 1964, MR. KILROY AND MR. DANIEL B. JOHNSON, WASHINGTON, D.C., HAVE BEEN IN TOUCH WITH US--- BY TELEPHONE AND IN PERSON --- CONCERNING THESE TWO CLAIMS. ON MAY 5, 1965, WE WERE FURNISHED A COPY OF A LETTER AND ENCLOSURES OF APRIL 28, 1965, FROM MR. PHIL LEHMAN, ASSISTANT CLAIM MANAGER OF YOUR COMPANY,TO MR. JOHNSON. OUR LAST CONTACT WITH YOUR LEGAL REPRESENTATIVE WAS ON MAY 24, 1965, WHEN MR. JOHNSON ADVISED THAT HE HAD MADE CONSIDERABLE PROGRESS IN REACHING A FINAL DRAFT STAGE SETTING FORTH YOUR COMPANY'S POSITION. IN VIEW OF THE FACT THAT SIX MONTHS HAVE ELAPSED WITH NO FURTHER ACTION ON YOUR PART, WE ARE PROCEEDING ON THE BASIS OF THE RECORD BEFORE US.

BOTH THE MOBILE HOMES OF SERGEANTS SEIDER AND SLAUGHTER WERE INSPECTED PRIOR TO MOVEMENT BY REPRESENTATIVES OF YOUR COMPANY AND ACCEPTED FOR TRANSPORTATION BY YOUR COMPANY IN RELATIVELY GOOD ORDER AND CONDITION. BOTH MOBILE HOMES WERE SO SEVERELY DAMAGED EN ROUTE THAT ONE HAD TO BE ABANDONED AND THE OTHER REQUIRED EXTENSIVE REPAIRS BEFORE IT COULD CONTINUE ON TO DESTINATION. YOU DENY ANY LIABILITY FOR DAMAGE CITING RULE 61, FIRST REVISED PAGE NO. 5, OF MOBILE HOUSING CARRIERS CONFERENCE FREIGHT TARIFF NO. 10, WHICH PROVIDES THAT THE "CARRIER SHALL NOT BE LIABLE FOR LOSS, DAMAGE OR INJURY TO THE COMMODITY BEING TRANSPORTED * * * CAUSED BY ANY STRUCTURAL OR OTHER DEFECT * * *.' SINCE THESE MOBILE HOMES WERE ACCEPTED FOR TRANSPORTATION BY YOUR COMPANY WITHOUT EXCEPTION AS TO THEIR CONDITION, IT WOULD APPEAR THAT A PRESUMPTION WAS RAISED THAT THE MOBILE HOMES WERE ROADWORTHY AND THE BURDEN OF OVERCOMING SUCH A PRESUMPTION WOULD LIE WITH YOUR COMPANY.

EACH OF THESE CLAIM FILES CONTAINS STATEMENTS FROM PERSONS IN THE MOBILE HOME BUSINESS INDICATING THAT THE DAMAGE WAS CAUSED BY ROUGH HANDLING. THE STATEMENT ENCLOSED WITH THE LETTER OF APRIL 28, 1965, FROM MR. PHIL LEHMAN IS A DESCRIPTION OF THE GENERAL CONSTRUCTION OF MOBILE HOMES AND IMPLIES THE EXISTENCE OF AN INHERENT WEAKNESS IN THEIR CONSTRUCTION FOR OVER-THE-ROAD TRANSPORTATION. HOWEVER, THIS STATEMENT IS NOT DIRECTED TO THE TWO PARTICULAR MOBILE HOMES IN QUESTION.

WE FEEL THAT SOME SIGNIFICANCE ALSO MUST BE GIVEN TO THE FACT THAT BOTH OF THESE MOBILE HOMES HAD BEEN MOVED LONG DISTANCES TWO TIMES PREVIOUSLY (BOTH MOVEMENTS OF SERGEANT SLAUGHTER'S UNIT ARE REPORTED TO HAVE BEEN MADE BY YOUR OWN COMPANY) WITHOUT INCURRING ANY STRUCTURAL DAMAGE. WOULD SEEM THEN THAT IF ANY INHERENT STRUCTURAL DEFECTS WERE PRESENT IN THE TRAILERS AT TIME OF MANUFACTURE SUCH DEFECTS WOULD HAVE RESULTED IN STRUCTURAL FAILURE ON PRIOR MOVES EVEN IN THE ABSENCE OF ROUGH HANDLING.

ON THE BASIS OF THE PRESENT RECORD, WE DO NOT BELIEVE THAT YOU HAVE OVERCOME THE PRESUMPTION THAT THE TRAILERS WERE ROADWORTHY WHEN TENDERED TO YOUR COMPANY SINCE YOU HAVE NOT PRESENTED CONVINCING EVIDENCE OF STRUCTURAL DEFECTS IN THE TRAILERS AT TIME OF MOVEMENT. THEREFORE, WE ARE INSTRUCTING OUR TRANSPORTATION DIVISION TO RESUME COLLECTION OF THE GOVERNMENT CLAIMS FOR DAMAGE TO THE MOBILE HOMES OF SERGEANTS SEIDER ($3,029.20) AND SLAUGHTER ($859.70). A COPY OF THIS LETTER IS BEING SENT TO MR. KILROY.