
    BIGLEY TRUCKING CORPORATION v. THE UNITED STATES
    [No. 38-55.
    Decided March 6, 1957]
    
      
      Mr. Raymond, Gittelman for the plaintiff.
    
      Mr. Alfred J. Kovell, with whom was Mr. Assistant Attorney General George Oochran Doub, for the defendant.
   Opinion

per curiam:

This case was referred by the court, pursuant to Buie 45 (c), to C. Murray Bernhardt, a commissioner of the court, with directions to make findings of fact and recommendations for conclusions of law. The commissioner has done so in a report filed December 19, 1956. When more than 15 days elapsed after the filing of this report and neither party gave notice in writing of an intention to except to the commissioner’s findings or recommendations, the defendant filed a motion for judgment in accordance with the recommendations of the commissioner. Since the court agrees with the recommendations and findings of the commissioner, as hereinafter set forth, it hereby adopts the same as the basis of its judgment in this case, and judgment will be entered for plaintiff in the amount of $38.40.

It is so ordered.

OPINION OP THE COMMISSIONER

The plaintiff, Bigley Trucking Corporation, whose name itself adds confusion to the activities it shares with its closely affiliated and commonly owned sister organization, Bigley Brothers, Inc., sues to recover an unpaid balance on a contract with the Army to haul 300 creosoted wooden antenna pole sections from a railroad siding at La Plata, Maryland, to an open field within the reservation of the Army Bemote Beceiving Station, three miles distant from La Plata. The sum in suit represents amounts withheld by the Government for the value, less salvage, of three poles which were damaged in the course of plaintiff’s transit operation.

In addition to defending on the ground of plaintiff’s negligence, the Government contends that plaintiff is not entitled to sue because Bigley Brothers, Inc., actually performed the contract, and that plaintiff’s liability as an insurer is fixed by the terms of the contract and by the contractor’s status as a common carrier, which status plaintiff denies.

The 800 pole sections in question had been manufactured and tapered in matched pairs so that each pair would constitute, when spliced together, a single, continuously tapered antenna pole 150 feet in length, the top section being about 60 feet in length, and the bottom section being about 90 feet and weighing approximately four tons. The sections were individually mated by being machined to fit at the spliced ends, and the sections of one pair were not interchangeable with sections of other pairs. They had been purchased by the defendant in Oregon and were consigned to the Army Remote Receiving Station, La Plata, Maryland, arriving at La Plata by rail at various times in January and February 1952.

On January 30,1952, defendant’s agent telephoned plaintiff and two other concerns he had selected from the classified section of the Washington, D. C., telephone directory and requested price quotations for removal of the poles from freight cars at La Plata and their hauling to and unloading at a selected site at the Remote Receiving Station. After Mr. Gilmartin, the Washington manager of the joint offices of plaintiff and Bigley Brothers, Inc., inspected the location to which the poles were to be hauled, he telephoned on the same day to defendant’s agent a price quotation which the latter accepted as the low bid. The defendant’s agent orally instructed plaintiff to proceed immediately in order to curtail demurrage, and stated that a purchase order numbered 166 would meanwhile be mailed to plaintiff. Plaintiff apparently had had little or no previous experience with Government contracts and, since Mr. Gilmartin had been given no further advice from defendant’s agent as to the details of the contract other than the bare essentials related above, when the formal, signed purchase order arrived at plaintiff’s office on February 4 incorporating by reference and attaching the standard General Provisions, these conditions constituted additions to the oral agreement, particularly paragraph 6 of the General Provisions reading as follows:

Except as otherwise provided in this contract, (i) the Contractor shall be responsible for the supplies covered by this contract until they are delivered at the designated delivery point, regardless of the point of inspection; and (ii) the Contractor shall bear all risks as to rejected supplies after notice of rejection.

Upon receipt of the purchase order Mr. Gilmartin filed if away without question or demur.

Meanwhile, plaintiff proceeded with performance on January 31 as directed, using employees who were on the payroll of Bigley Brothers, Inc., a pole trailer and a low-bed trailer, each drawn by a tractor and owned by Bigley Brothers, Inc., and a truck-mounted crane and other loading equipment owned by Bigley Trucking Corporation. On February 2 a bottom pole section was damaged when, after being unloaded with other pole sections onto the trailer being operated by the contractor at the La Plata railroad siding, its spliced end was splintered when it was accidentally swung into the side of a freight car while being maneuvered through close quarters.

On February 5 the spliced end of another bottom pole section was splintered when it fell from the tractor end of the tractor trailer at the Army Remote Receiving Station. On this occasion the field on which the pole sections were to be unloaded was wet and muddy from rainfall the preceding day. The selected storage site was about 100 yards off of the reservation road, and so the contractor’s loaded vehicles had to traverse the intervening stretch of open field to unload. After several loads had been successfully deposited, in crossing the field with another load the left rear wheel of the trailer fell into a muddy hole up to its axle. Plaintiff’s employees then endeavored to extricate the mired vehicle with its load of pole sections by pulling it out with a truck attached to the front of the tractor. However, as the horizontal tension of the tow was applied a %" steel safety cable, which besides the poles themselves was the sole connecting link between the tractor and the trailer, parted, and the ends of the pole sections resting on the rear end of the tractor fell four or five feet to the earth, splintering the spliced end of a pole section. Although plaintiff contended that the selection of the dumping site and mode of extrication of the vehicle were dictated by defendant’s agents so as to make defendant responsible, the evidence indicates plaintiff’s concurrence in the former and defendant’s mere acquiescence in the latter.

Either because plaintiff’s employees objected to continued use of the site where the damage occurred, or because defendant desired to deposit the remaining poles elsewhere, another site was mutually agreed upon by the parties and activities resumed. Later on the same day, February 5, at the new site, the incident repeated itself and another bottom pole section was broken in half when it fell from the rear of the tractor as the result of the safety cable parting when a tow truck endeavored to extricate the trailer which had managed to get itself mired again.

The damage to the three pole sections not only made them unusable for their intended purpose, but also rendered useless the companion pole sections which the damaged sections ivere specially machined to fit. The contracting officer found plaintiff to be negligent and, in paying plaintiff for its services, withheld from the $8,600 contract price the sum of $1,732.40, representing the $2,111.40 cost price of the six sections rendered unusable, less their salvage value of $379. The Armed Services Board of Contract Appeals dismissed plaintiff’s appeal for want of jurisdiction and the present suit was filed.

Both at common law and under sections 20 (11) and 319 of title 40, United States Code, a common carrier is liable as an insurer for the safety of property transported, save for damage resulting from an act of God or a public enemy, fault of the shipper, or inherent vice of the property itself. A private or contract carrier, to be distinguished from a common carrier by the latter’s obligation to the public to carry on demand, is liable only to exercise ordinary care of the property carried, in the absence of a special contract provision fixing a greater degree of responsibility. In this respect the liability of a private or contract carrier is precisely that of a bailee for hire who must answer only for loss or injury resulting from failure to use ordinary care or, conversely, is responsible for ordinary negligence. Ordinary care is universally recognized to be such care as a prudent man would ordinarily give to the handling of his own property under like circumstances. Clark v. United States, 95 U. S. 539, 542; Atchison, Topeka and Santa Fe Railway Company v. United States, 118 C. Cls. 194, 200; United States v. Savage Truck Line, 209 F. (2d) 442, 44 A. L. R. (2d) 984.

Defendant has devoted considerable space to establishing that plaintiff’s liability was that of an insurer, both because it was recognized as a common carrier by the Interstate Commerce Commission and, alternatively, the quoted provision of the written purchase order made it so. Although the evidence that plaintiff was, in fact, a common carrier, as well as that plaintiff was bound by the oral agreement and not by the written purchase order, is highly persuasive, neither of these matters need be decided, for the circumstances justify the legal conclusion that plaintiff was guilty of failure to exercise ordinary care which would prevent recovery in either event. For the same reason there can be passed over the question of whether Bigley Trucking Corporation or Bigley Brothers, Inc., was the proper party in interest, a subsidiary problem which the facts would seem to resolve in favor of plaintiff on the theory that an informal subcontract existed.

Application of the rule of ordinary care to the facts of the case results readily in defendant’s favor as to the onus for each of the three damaged poles.

When the operator of plaintiff’s apparatus at the railroad siding observed obstructions to the safe movement of his loaded trailer, ordinary prudence would have suggested either a temporary delay awaiting the dissipation or rearrangement of the obstacles to permit safe passage, or a nicer calculation of clearances. In proceeding he assumed a risk which was realized when the end of his moving trailer brought the spliced end of a pole forcibly against the side of a freight car. It cannot be said that this passive obstacle was the proximate cause of the damage to the pole, or that the defendant was responsible for the existence of unloading conditions beyond its control. A freight depot during unloading operations is frequently a scene of orderly confusion, and care by operators of individual vehicles is the only effective preventative to damage to their cargoes. Reasonable care was not exercised in this instance.

The plaintiff contends that defendant was negligent in not providing a safe place at the Army Remote Receiving Station for the poles to be deposited, and in directing the manner in which the mired trailer be extricated. These failures, says plaintiff, and not its own failure to employ the skill of its calling, were the proximate cause of the damage to the two poles on February 5. Before quoting a price plaintiff’s agent inspected the site at the field where the poles were to be deposited, and did not object either bo its distance from the access road or the nature of the terrain. After successfully using that site for several days, rain made the field muddy. In view of the exigencies of time existing, the election of plaintiff’s employees to continue their unloading operations with the field in that condition was perhaps excusable. But their decision to pull the loaded tractor trailer out of a mudhole was not. Their knowledge of their equipment and its capabilities was necessarily superior to that of defendant’s agents watching the operation. It required little imagination to expect that a %" steel cable would break under the lateral pressure of hauling a 24-plus ton load out of the mud, and to foresee the consequences of a broken cable. The cable was not designed or intended to withstand such strains. Even if defendant’s agents had dictated the means employed, which is not the case, this would not exculpate plaintiff, for it was held in Hanaman v. Liberty Trucking Company, 243 Wis. 478, 11 N. W. (2d) 130, 149 A. L. R. 640, that the fact that the consignee’s son and another helper furnished by the consignee assisted the driver of a truck in unloading goods did not exonerate the carrier from liability for negligence in the unloading, upon the theory that the consignee thereby consented to, and participated in, the conduct complained of. Having once experienced the disastrous consequences of hauling a heavily loaded tractor trailer out of the mud, there is less defense for the repetition of this incident several hours later, and correspondingly greater negligence on plaintiff’s part. Due care by plaintiff’s employees after the miring of the trailer in each instance would have led them to unload the poles before extricating the equipment. In neither of these incidents can it be said that defendant’s failure to provide a safe site for unloading was the proximate cause of the damage. Plaintiff had not only approved the original site in advance, but also had used the field without event before rain created more hazardous conditions. Plaintiff could have foreseen before contracting the job that by the law of averages wet weather would be encountered during at least a portion of the performance and, if it felt insecure or uncertain, had several alternatives, including a refusal to bid. The condition of the unloading on February 5 was an accepted hazard over which defendant had no control.

Defendant properly withheld from its payment to plaintiff the cost of the damaged poles, less their salvage value. Since the cost of the poles was $2,111.40, and their salvage value was $411.40, instead of $379 as found by the contracting officer and paid to plaintiff (findings 10 and 11), plaintiff is entitled to judgment for the $38.40 balance.

FINDINGS OF FACT

1. Plaintiff is a corporation chartered under the laws of the State of New York for the purpose of carrying on a general trucking, contracting, and stevedoring business. At times herein material, it engaged in the rigging and heavy hauling business in the District of Columbia and elsewhere and, with Bigley Brothers, Incorporated, an affiliated company which was also engaged in the hauling business, maintained a common office and employed the same person as manager in the District of Columbia for the transaction of business.

2. On or about January 30, 1952, defendant was the rail consignee at La Plata, Maryland, of the first arrivals of an eventual total of 300 treated wooden antenna poles of varying lengths from 60 to 90 feet, which had been purchased in Oregon and were designed for installation at the Army Remote Receiving Station, three miles from the La Plata rail siding. The poles had been manufactured and tapered in matched pairs so that each pair would constitute, when spliced together, a single, continuously tapered antenna pole 150 feet in length. The bottom section of each completed and spliced pair was about 90 feet in length and thicker and larger than the top section, which averaged 60 feet. The sections of each pair were individually mated and were not interchangeable with sections of other pairs.

3. On January 30, 1952, the defendant’s contracting officer was instructed to engage a commercial hauling concern to remove the poles then and thereafter to be on cars at the La Plata rail siding to the Beceiving Station without delay to avoid demurrage. The contracting officer’s assistant consulted the classified telephone directory and requested price quotations by telephone from plaintiff and two other concerns. Later on the same day the plaintiff’s Washington manager, one Gilmartin, submitted to the assistant to defendant’s contracting officer by telephone a price quotation of $3,600, at $12 per pole section, and was instructed to proceed immediately. To avoid delay, the assistant to the defendant’s contracting officer instructed the plaintiff’s Washington manager that the work to be performed would be given a purchase order number 166 for billing purposes and that a contract would be mailed. Plaintiff’s Washington manager was told that the poles were to be delivered to a place at the Beceiving Station to be designated by an officer in charge of receiving the shipments, and plaintiff’s said manager personally inspected the site. There was no discussion at that time of other specific contract terms. It was not established that plaintiff had had prior Government contracts so as to be familiar with customary procedures. Be-moval of the poles to the Beceiving Station was begun the following day, January 31, and was continued thereafter as the poles arrived at the siding, for a period of approximately two weeks until completed.

4. After plaintiff had been instructed orally to proceed, the defendant’s contracting officer prepared and executed a purchase order form (War Department Form 18) to which he assigned the number 166. The standard General Provisions (Supply Contract) were incorporated therein by reference and a copy of them was attached. The contractor’s signature was not required on this type of purchase order form. The form contained the statement that “This contract is authorized by section 2 (c) (1), Armed Services Procurement Act of 1947 and Presidential Proclamation 2914.” The purchase order was mailed to plaintiff on January 31, but was not received by plaintiff until Monday, February 4, after plaintiff had been engaged in performance of the services for three days. On receipt of the purchase order plaintiff’s Washington manager checked the price, the number of poles and the shipping destination and then filed the order away, without protesting any of its terms and conditions.

5. Paragraph 6 of the General Provisions, incorporated by reference into the purchase order, provided:

Except as otherwise provided in this contract, (i) the Contractor shall be responsible for the supplies covered by this contract until they are delivered at the designated delivery point, regardless of the point of inspection; and (ii) the Contractor shall bear all risks as to rejected supplies after notice of rejection.

This condition had not previously been mentioned to plaintiff in the oral negotiations nor had the fact been mentioned that the purchase order would incorporate by reference the standard General Provisions.

6. Plaintiff and Bigley Brothers, Inc., each owned trucks and other items of transportation equipment which were used interchangeably by both companies on a hire basis. Plaintiff’s equipment consisted of jacks, truck-mounted cranes, and other equipment for lifting and loading. Bigley Brothers, Inc., had equipment consisting largely of trucks, tractor trailers, and other vehicles designed for the hauling of heavy objects. The equipment and activities of one complemented those of the other. The unloading and hauling services in question were performed by employees of Bigley Brothers, Inc., using a crane owned by plaintiff and a pole trailer and a low-bed trailer, each drawn by separate tractors, owned by Bigley Brothers, Inc. The labor force of the two companies was, to some extent, used interchangeably. Those performing this particular contract were paid by Bigley Brothers, Inc.

7. On February 2 a 90-foot pole section was damaged at rail side. This section had been unloaded from the railroad car onto plaintiff’s tractor trailer which, in maneuvering through close quarters alongside the railroad car, swung around in such a way as to bring the end of the pole designed for splicing into contact with the side of a railroad car, crushing the end of the pole and rendering it unfit for use.

8. On February 5 two more of the 90-foot pole sections were damaged at the Army Remote Receiving Station. Defendant’s agent at the Station directed that the poles be unloaded at a site in an open field on the reservation about 100 yards off the main road. Plaintiff’s Washington manager had previously inspected that site. Plaintiff’s employees raised no objection to the site selected. Rain had made the surface of the field soft and muddy. Several loads of pole sections were hauled in and unloaded there without incident. Then, while a pole trailer loaded with six 90-foot pole sections was pulling into position near the unloading site, the left rear wheel of the trailer suddenly sank into a mudhole up to its axle at a point 25 or 30 yards off the main road. Plaintiff’s employees, with the knowledge of defendant’s agents on the scene and without their objection, hooked a crane truck to the front of the mired tractor trailer in an effort to pull it out. As the towing tension increased, the safety cable, connecting the tractor with the rear wheels of the trailer, broke, and the lashed ends of the poles which had been resting on the rear end of the tractor fell to the earth a distance of four or five feet. The breaking of the safety cable had caused the tractor to separate from the trailer and to slip from under its burden. In falling to the earth one pole section was splintered at its splicing end, rendering it unfit for its intended use.

9. Either because plaintiff’s employees objected to continued use of the site where the pole section had been damaged as related, or because defendant desired to deposit the remaining poles elsewhere, a new site was mutually agreed upon for dumping the remaining pole sections in an area off of an access road in the reservation. On the same day, February 5, several loads of pole sections were hauled to and dumped at the second site without incident. Then, a wheel of the loaded trailer again became mired in the mud and the same means as before were employed to extricate it, with like results, i. e., a truck was used to tow out the tractor trailer, the safety cable of the latter broke, the tractor pulled away from the disconnected trailer, and the end of the pole sections resting on the rear of the tractor slid off and fell to the ground, breaking off one of the 90-foot pole sections about 30 feet from its butt end and rendering it unfit for its intended use.

10. Upon completion of the transportation services, Bigley Brothers, Inc., submitted an invoice therefor in the amount of $3,600 to defendant. The invoice was on the billhead of Bigley Brothers, Inc., and was signed “Bigley Brothers, Inc., William J. Gilmartin, Manager, Washington Office.” Pursuant thereto, on September 11,1952, defendant paid to Big-ley Brothers, Inc., the amount of $1,488.60, withholding $2,111.40 as the claimed value of the three damaged poles. Thereafter, on September 16, 1952, Bigley Brothers, Inc., by its president, William J. Bigley, protested to defendant that $2,111.40 was being withheld from it. Mr. Bigley stated that the claim had been the subject of a conference with representatives of defendant and requested defendant to determine the possibility of replacement of the poles at a lesser amount than that withheld or repair of the poles for their intended use. On December 15, 1952, Bigley Brothers, Inc., requested a second conference to discuss its claim.

On January 26,1953, the contracting officer issued findings of fact and a decision, addressed to Bigley Trucking Corporation. The findings stated that a report of survey had been made with respect to the damage and that the Chief of Finance under authority of the Secretary of the Army had approved a finding of the contractor’s liability in the amount of $1,732.40, representing the value of the three damaged poles in the amount of $2,111.40, minus the salvage value of the poles which had been determined to be $379. The contracting officer’s decision was that full responsibility for the damage was the contractor’s under Article 6 of the General Provisions, above-quoted. From this decision, Bigley Brothers, Inc., appealed to the Armed Services Board of Cion-tract Appeals, which Board dismissed the appeal for want of jurisdiction.

11. As each pole consisted of two sections specially machined and individually matched to fit together to form a single 150-foot antenna pole, damage to one section rendered the mated section useless also for its intended purpose. On this basis, the damage to defendant was $2,111.40, the purchase price f. o. b., La Plata, Maryland, of three complete poles (consisting of two sections each) on a quantity purchase basis, from which is to be deducted the salvage value of the damaged poles. The pole sections rendered useless for the antenna installation by the damage to the mated sections, plus the usable lengths of the latter, were salvageable as ordinary single piece line construction poles. The salvage value of these sections was $417.40, of which $379 was tendered by defendant to Bigley Brothers, Inc., by check, and $38.40 has not been paid.

12. At material times, the Bigley Trucking Corporation advertised in the classified section of the Washington, D. C., telephone directory, under the classifications “hauling” and “riggers”. In its advertisement under the “hauling” classification there appeared the wording “rigging and heavy hauling”, and “dismantling — erecting—crating”. In the advertisement under the “riggers” classification there appeared the words “heavy hauling and rigging”. Concurrently, Bigley Brothers, Inc., held itself out to the public as a hauler of heavy equipment.

On May 21,1937, both companies applied to the Interstate Commerce Commission for authority to operate as contract carriers or, in the alternative, as common carriers, and the character of their business was determined by the Commission to be that of common carriers. The Commission found, however, that the same individuals owned the stock and managed the affairs of both corporations, that each applicant held title to certain motor vehicle equipment which was used indiscriminately by both companies, and that the applicants were engaged in a single business and were, therefore, entitled to only one certificate. The Commission stated that “In view of the fact that administrative difficulties may result from the issuance of a permit or certificate in the name of both corporations, the issuance of the operating authority hereinafter granted will be withheld until we are advised which corporation is to receive such authority.”

Bigley Brothers, Inc., thereafter received a certificate issued May 24, 1941, from the Interstate Commerce Commission, authorizing it to operate over irregular routes as a common carrier of building materials, steel, machinery, factory equipment, and contractors’ equipment. The certificate states that it “also embraces Docket No. MC 19638, Bigley Trucking Corporation, Contract Carrier Application.”

CONCLUSION OP LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover and judgment is therefore entered for plaintiff in the amount of $38.40. 
      
      
         Beyond the testimony of plaintiff’s Washington manager that a subcontract existed, the record contains no direct evidence of the existence or nature of a subcontract between plaintiff and Bigley Brothers, Inc., in the performance of the instant contract.
     
      
       Strangely enough, plaintiff’s eye-witnesses could not recall the incident related in finding 8, although they were performing the services in the course of which the damage occurred. They recalled only the facts related in finding 9. Defendant’s sole eyewitness recalled both incidents, and the admitted fact that two poles were damaged in the same manner lends credence to his story that the incident repeated itself.
     
      
       The decision of the Board of Contract Appeals was not supplied for the record, and! the reported fact is predicated upon admissions in the pleadings.
     
      
       Whether the check was accepted and deposited for collection by the payee, or is still in possession of the payee is not in the record.
     