
    THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION v. THE UNITED STATES
    [No. 121-52.
    Decided October 9, 1957]
    
      
      Mr. James 8. Crerrdns for the plaintiff. Mr. Paul F. McArdle was on the briefs.
    
      Miss Paulme B. Heller, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. Mr. Paris T. Houston was on the brief.
   Littleton, Judge,

delivered the opinion of the court:

Plaintiff, a common carrier by railroad of passengers and freight, brought this suit to recover the amount of $3,474.90 representing the unpaid portion of charges that plaintiff made against defendant for the transportation of 24 shipments of freight in 1947. Defendant by answer admits the allegations of plaintiff’s petition with respect to these 24 shipments but denies that there is any balance due plaintiff, or that plaintiff is entitled to recover any amount from defendant for the reason that there is due defendant by counterclaim the sum of $3,474.90.

Defendant’s counterclaim is based on the alleged loss by plaintiff’s connecting carrier of 33 bags of khaki cotton shirts belonging to defendant which were shipped from Wilkes-Barre, Pennsylvania, to the defendant’s Charlotte Quartermaster Depot at Charlotte, North Carolina, in January of 1947. This shipment predates and is unrelated to the 24 shipments upon which plaintiff has brought suit.

The 33 bags having been delivered to plaintiff at Wilkes-Barre moved to Richmond, Virginia, in a car belonging to plaintiff. At Richmond they were transferred to the Seaboard Air Line Railroad Company, the connecting carrier, and moved by that line to Charlotte, North Carolina, where they arrived on January 15,1947. Upon arrival there they were unloaded and placed in a Seaboard warehouse, and on January 17, were loaded along with other items by Seaboard personnel in a Seaboard car and the car sealed. On January 18, 1947, this car moved from the Seaboard warehouse in Charlotte to the Charlotte Quartermaster Depot, a distance of approximately four miles. On January 20 defendant’s personnel at the depot broke the seals on the doors and unloaded the contents of the car. On a blank form provided for that purpose, there being no shipping documents in the car, the person in charge of the unloading made a tally listing U. S. Quartermaster Corps numbers appearing on the bales, packages and bags unloaded from the car. The numbers on the 33 bags of shirts involved here were not listed on that tally.

The tally sheet that had been prepared at the time of the unloading was checked several days later against the arrival notice that the Charlotte Quartermaster Depot had received from Seaboard. That notice had been mailed by Seaboard to the Charlotte Quartermaster Depot on January 17. It was then noted that the tally sheet did not contain any information relative to the bags of shirts. Thereupon, an unsuccessful effort was made by depot personnel to locate the shirts. Some three weeks later, a more thorough but still unsuccessful effort was made by depot personnel to locate the shirts following which defendant submitted to plaintiff a claim in the amount of $3,474.90 for the alleged loss of the shirts. Upon the rejection of the claim by plaintiff, defendant in November 1947 deducted that sum in making payment on plaintiff’s bill covering the shipments which are the subject of plaintiff’s petition. It is now admitted by defendant that this sum exceeds the actual value of the shirts by $1,724.98.

Both parties in their briefs and arguments make much of the question as to just who has the burden of proof, and both rely on our decision in Central of Georgia Railway Co. v. United States, 129 C. Cls. 278, where a situation somewhat like the present one was presented. There, while noting the lack of any authority directly in point, the court said

if a carrier elects, for reasons of economy, to have no agent present at the unloading, and if the consignee makes an admittedly honest and apparently accurate count of the goods unloaded, which count shows a shortage, the carrier has the burden of persuading the trier of fact that the consignee’s count was inaccurate. We think no other rule would be consistent with the carrier’s legal position as an insurer subject only to narrow exceptions.

In holding for the Government we found in that case that “an admittedly honest and accurate count” had been made by the Government, as consignee, and the plaintiff railroad had failed to persuade us to disbelieve or doubt that count. Here defendant’s evidence is certainly sufficient to support the 'prima fade showing or presumption of non-delivery. However we hold that presumption to have been rebutted in the light of the evidence presented by plaintiff, and on a consideration of all the evidence, we conclude, as did the commissioner of this court who conducted the trial and heard the witnesses, that the “inference is warranted that the shirts were in car T & P 60982 [loaded by the Railroad’s employees at Charlotte] when it arrived at the Charlotte Quartermaster Depot.”

In the Central of Georgia case, supra, the Government produced as evidence the actual tally sheet prepared in the unloading of the car while here although testimony was presented in support of the assertion that such a tally had been made, no such tally sheet could be produced. Defendant’s evidence as to the count was supplied by the testimony of the individual who was in charge of the unloading of the car and who is alleged to have prepared the tally sheet, but whose recollection of the incident, by his own admission, had been made quite vague by the passage of nine years. Although unable to remember anything with respect to the unloading, he was able, with reference to a statement made by him one year after the incident, to refresh his memory sufficiently to recall that he was the checker who supervised the unloading of the subject car, and that the tally sheet which he prepared did not list any of the 33 bags of shirts. He did not take part in the later searches which were made at the depot, and since he did not have the shipping documents in his possession he did not know at the time he completed the unloading and checking that there was a supposed shortage in the shipment. Defendant’s other evidence is composed of the testimony and documents relative to the subsequent searches made at the depot in unsuccessful efforts to locate the shirts.

Opposing this is evidence by plaintiff through the testimony of the individual who was in charge of the loading of the car at the Charlotte warehouse of Seaboard, testifying in part from records he made at the time, that the 33 bags of shirts were placed in the car, and the car doors sealed almost immediately thereafter. That testimony is corroborated by the testimony of another individual, a railroad policeman, who was present in the warehouse at Charlotte at the time these bags of shirts were being handled and whose attention had been directed to them in particular because of the damaged condition of a few of the bags of the now missing group. Also as part of plaintiff’s evidence are the warehouse records made at the time which record the removal of the bags of shirts from the warehouse and their loading into the car.

While there is present in the record of this case direct evidence to the effect that the bags arrived at Charlotte, North Carolina, were unloaded and stored in a Seaboard warehouse, and were later removed from that warehouse and placed in a sealed car for transportation to the Quartermaster Depot in Charlotte, there is no direct evidence relative to the bags after that. But it is agreed that the seal on the car had not been broken.

During the period involved here, numerous consignments of these shirts packed in bags were shipped by railroad from Wilkes-Barre, Pennsylvania, to the Quartermaster Depot at Charlotte. At the Army depot the bags were opened, and the shirts were inspected and classified. After the shirts had been taken from the bags, they could no longer be identified as having been received at the depot in a particular shipment. If the missing shirts had been placed in the warehouse at the depot without proper recordation and removed from their bags shortly thereafter, this would account for the fact that the later searches proved to be unsuccessful in locating them.

The records maintained at the Atlanta General Depot, Atlanta, Georgia, covering additions to and withdrawals from the supplies at Charlotte lend support to the inference that the bags were received at the Charlotte Army Depot. These records, there being no records kept at the Charlotte depot, showed that an overage from the Charlotte depot was reported on October 27, 1947, of approximately the same quantity and type of shirts as contained in the bags involved here.

We are of the opinion from the record here that plaintiff is entitled to recover and judgment will be entered for plaintiff in the sum of $8,474.90. Defendant’s counterclaim will be dismissed.

It is so ordered.

Madden, Judge/ Whitaker, Judge; and Jones, Chief Judge, concur.

Laramore, Judge, took no part in the consideration and decision of this case.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Mastín G. White, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff is a corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania. It is engaged in interstate commerce as a common carrier by railroad of passengers and freight for hire, over its own lines and jointly with other common carriers.

2. (a) During the months of April, June, and August 1947, the plaintiff, in conjunction with other common carriers by railroad, transported for the defendant 24 shipments of freight between points in the United States under the following bills of lading:

WW 138717 WW 75397 WX 7734121
WT 7937820 WW 3645879 WX 9007953
WX 8722383 WW 3645866 WX 610559
WX 8378309 WW 5324620 WX 8378274
WW 2745516 WW 3450705 WX 6490845
WW 3643872 WW 3450706 WX 9007979
WW 79292 WX 8378310 WX 8722382
WW 75398 WX 6746812 WV 9997223

(b) The correct charges for the transportation services referred to in paragraph (a) of this finding totaled $8,879.43.

3. As the delivering carrier of all the freight shipments referred to in finding 2, the plaintiff was entitled to receive payment of the charges for such transportation services. A bill numbered 8/218861 in the amount of $8,879.43 was submitted by the plaintiff to the defendant.

4. (a) The defendant paid the plaintiff the sum of $5,404.53 in November 1947 on the bill mentioned in finding 3. No other payment was ever made by the defendant to the plaintiff with, respect to the transportation services covered by such bill.

(b) The reason for the defendant’s failure to pay the plaintiff the remainder of $3,474.90 was that the defendant set off against the plaintiff’s charges the amount of $3,474.90 in reimbursement of a claim asserted by the defendant against the plaintiff because of the alleged loss by the plaintiff in January 1947 of property owned by the defendant that had been entrusted to the plaintiff for transportation under bill of lading No. WW 2039148.

5. The plaintiff has not assigned or transferred the whole or any part of, or any interest in, its claim against the defendant for the sum of $3,474.90 withheld by the defendant under the circumstances outlined in the previous findings.

FINDINGS RELATIVE TO DEFENDANT’S COUNTERCLAIM

6. Numerous consignments of off-color and irregular khaki cotton shirts belonging to the defendant were shipped in bags by railroad during 1946 and 1947 from a manufacturing establishment in Wilkes-Barre, Pennsylvania, to the Charlotte Quartermaster Depot of the defendant at Charlotte, North Carolina, for the purpose of being inspected and classified. The bags were stamped with identifying U. S. Quartermaster Corps numbers, and the numbers of the bags contained in a particular shipment were shown on the bill of lading covering that shipment. When the bags of shirts in a shipment were received at the Charlotte Quartermaster Depot, it was customary for the bags to be unloaded from the railroad car and stored in Warehouse No. 2 at the depot pending inspection and classification. At an appropriate time — which might be as much as 60 days from the date of the original storage in Warehouse No. 2 — the shirts were removed from the bags and were taken to another part of Warehouse No. 2, where they were inspected and classified. After going through the inspection and classification procedures, some of the shirts were taken to Warehouse No. 1 at the depot and were placed in the regular stock of khaki cotton shirts. Others were disposed of as salvage. After shirts had been taken from the original bags, they could no longer be identified as having been received at the depot in a particular shipment.

7. On January 7,1947,83 bags of khaki cotton shirts (hereinafter usually referred to as “the shirts”) belonging to the defendant were received by the plaintiff at Wilkes-Barre, Pennsylvania, for transportation by railroad over the plaintiff’s line and the lines of connecting common carriers to the defendant’s Charlotte Quartermaster Depot at Charlotte, North Carolina. Each of the bags bore a stamped identifying number of the U. S. Quartermaster Corps, the numbers running from 2331 to 2363, inclusive. The shirts were loaded in a railroad freight car numbered Pennsylvania 566896. The shipment was covered by Government bill of lading No. WW 2039148, which had been prepared pursuant to and in accordance with the applicable regulations and procedures of the defendant.

8. The shirts were off-color and irregular but otherwise in good order and condition when they were accepted by the plaintiff for transportation. Their value to the defendant was $1,749.92.

9. The car Pennsylvania 566896, containing the shirts, moved from Wilkes-Barre, Pennsylvania, on January 7, 1947. It arrived in Richmond, Virginia, on January 11,1947 and was placed at the freight warehouse of the Seaboard Air Line Railroad Company (hereinafter referred to as “Seaboard”) . On the same day, the shirts were unloaded by personnel of Seaboard from the car Pennsylvania 566896 and reloaded in another railroad freight car numbered CGW 92011.

10. The car CGW 92011, containing the shirts, moved from Richmond, Virginia, on January 13, 1947. It arrived in Charlotte, North Carolina, on January 15, 1947. The next day, the shirts were unloaded by personnel of Seaboard from the car CGW 92011 and placed in a warehouse maintained by Seaboard at Charlotte.

11. (a) The shirts were stored in Seaboard’s warehouse at Charlotte, North Carolina, from January 16 to January 17, 1947. On January 17, the shirts were loaded by personnel of Seaboard in a railroad car numbered T&P 60982. Other goods were also loaded by Seaboard’s persomiel in the car T&P 60982 on January 17, 1947. A few minutes after the loading of the car was completed, the doors of the car were closed and seals were placed on the doors. It was then impossible to remove any of the contents from the car T&P 60982 without first breaking the seal on one of the car doors,

(b) Only a relatively short period of time elapsed between the placing of the shirts in the car T&P 60982 and the sealing of the car doors.

12. On January 17, 1947, personnel of Seaboard in Charlotte, North Carolina, mailed to the Charlotte Quartermaster Depot a notice relative to the arrival of the shirts.

13. On January 18, 1947, the car T&P 60982 moved from Seaboard’s warehouse at Charlotte, North Carolina, to the Charlotte Quartermaster Depot, a distance of approximately four miles.

14. On January 20,1947, personnel of the defendant’s Charlotte Quartermaster Depot broke the seals on the doors of car T&P 60982 (the seals theretofore were intact), unloaded the contents of the car, and placed the contents in Warehouse No. 2 at the depot. The personnel involved in the unloading of car T&P 60982 did not have any documents or other information showing what goods had been loaded in the car by Seaboard’s personnel. On a blank form provided for that purpose, the person in charge of the unloading made a tally by listing in pencil U. S. Quartermaster Corps numbers appearing on bales, packages, or bags unloaded from the car. The numbers on the 33 bags of shirts involved in the counterclaim — i. e., Nos. 2331 to 2363, inclusive — were not listed on such form.

15. The tally sheet that had been prepared at the time of the unloading of the car T&P 60982 (see finding 14) was checked several days later against the arrival notice that the Charlotte Quartermaster Depot had received from Seaboard (see finding 12) and other documents relating to the shipment of the shirts; and it was noted that the tally sheet did not contain any information relative to the receipt of the shirts. Thereupon,, an unsuccessful effort was made by depot personnel to locate the shirts. Some three weeks later, a more thorough but still unsuccessful effort was made by depot personnel to locate the shirts.

The records at the Atlanta General Depot, Atlanta, Georgia, covering additions to and withdrawals from the supplies at the Charlotte depot disclosed that on October 17, 1947, there was reported from that depot an overage of approximately the same quantity of cotton khaki shirts as contained in the 33 bags of shirts here involved.

16. (a) The defendant duly submitted to the plaintiff a claim in the amount of $3,474.90 on account of the alleged loss of the shirts.

(b) The defendant’s claim was rejected by the plaintiff.

17. In November 1947, because of the alleged loss of the shirts, the defendant deducted the sum of $3,474.90 in making payment on the plaintiff’s bill No. 8/218861 (see findings 3 and 4). The amount of the deduction exceeded the actual value of the shirts by $1,724.98.

18. (a) There is no direct evidence showing what happened to the shirts after they were taken from Seaboard’s warehouse at Charlotte, North Carolina, and placed in the car T&P 60982 (see finding 11).

(b) The inference is warranted that the shirts were in car T&P 60982 when it arrived at the Charlotte Quartermaster Depot, when the seals on the car doors were broken, and when the contents of the car were unloaded by personnel of the defendant and placed in Warehouse No. 2 at the depot (see finding 14); and that the shirts were removed from the original bags before a search for them was made by depot personnel.

(c) In any event, the defendant has failed to show by a preponderance of the evidence that the shirts were not delivered to the Charlotte Quartermaster Depot.

19. The parties have stipulated as follows:

If said shipment of 33 bags of clothing was delivered by the carrier to the consignee named in said Government bill of lading No. W W 2039148 in its entirety and in the same condition in which it was received by plaintiff, then plaintiff is entitled to judgment in the sum of three thousand, four hundred and seventy-four dollars and ninety cents ($3,474.90). If said shipment of 33 bags of clothing was not delivered by the carrier to the consignee in its entirety and in the same condition in which it was received by plaintiff, then plaintiff is entitled to judgment in the sum of $1,724.98, representing the difference between the amount deducted by defendant * * * and the full actual value of said shipment * * *.

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.

It is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of three thousand four hundred seventy-four dollars and ninety cents ($3,474.90).

It is further concluded that the defendant is not entitled to recover on its counterclaim, and the counterclaim is therefore dismissed.  