UNITED STATES COURT OF CLAIMS Roadway Express, Inc. No. 357-61 163 Ct. Cl. 578 OPINION Plaintiff, a motor carrier, sues to recover $ 36,000 withheld by defendant to cover the value of 120 cartons of three-cent postal cards missing from a cargo of 600 cartons loaded on plaintiff's trailer by defendant's personnel in Washington, D.C., for shipment to Minneapolis, Minnesota. On November 12, 1963, Trial Commissioner Marion T. Bennett filed his findings of fact and recommended conclusions of law, which follows: This case involves the mysterious disappearance of 120 cartons containing 1,200,000 Government 3-cent postal cards. They were part of a cargo of 600 cartons supposedly loaded on plaintiff's trailer for shipment from Washington, D.C., to Minneapolis, Minnesota. When they did not arrive at their destination defendant blamed plaintiff carrier and withheld $ 36,000 from sums otherwise due plaintiff. This amount represents the value of the cards at 3 cents each. Plaintiff sues to recover the sum. Defendant asserts an affirmative defense in the same amount for the alleged value of the missing cards and a counterclaim for $ 333.49 on other bills. The counterclaim is conceded by plaintiff. The story here is as short as it is mysterious. The cards were to be picked up at Government Printing Office Warehouse No. 4. The labor to load the cards was furnished by defendant. Fifteen minutes after receipting for the 600 cartons plaintiff's driver appeared on schedule at the weighing station for trucks about 3 miles distant. The weight ticket he received there demonstrates that 120 of the 600 cartons were not then aboard the trailer. Clearly, either they were never loaded or they were stolen enroute to the weight station. Plaintiff's driver is a reputable citizen and has worked for plaintiff for many years. Defendant does not suggest that he stole the cards. In fact, the evidence is persuasive that he could not have done so, nor permitted it, for he arrived at the weight station with no apparent delay enroute. It would have been a big job to remove so many cartons. Their total weight was 6,540 pounds. It simply could not have been done in the time consumed in the trip from the loading dock at the warehouse to the weight station. Even the postal inspectors and the Federal Bureau of Investigation could not agree that there was a theft here or, if so, whether it was an interstate theft. As they passed the buck back and forth over jurisdiction to investigate the matter, the track of the disappearing cards grew cold. By the process of elimination of possibilities we go back to the loading dock at Warehouse No. 4. Defendant's employees were also experienced in their work and reputable. There were many security safeguards at the Government Printing Office in manufacture of the cards and in the procedures for loading them on trucks. These procedures were not without their weaknesses. Some of those weaknesses were repaired later as a result of the experience with the missing postal cards. But, so far as this case is concerned, there is no clear evidence that any specific failure of the elaborate checks and doublechecks then provided can account for what happened on September 19, 1958. The documentary evidence shows that 600 cartons were brought down from the area where printed to be loaded on plaintiff's trailer. The loading was done by lift truck operated by an employee of defendant. The plaintiff's driver was told by defendant's checker that he had received his full load, assumed he had, and receipted for it. He did not count the cartons. Such was not then the custom. The loading dock was a busy place. Plaintiff had four other trailers loaded there that same day, and eleven other carriers also had loads that were picked up at the same place that day. Loading was rapid and, with the exception of this incident, apparently without prior or subsequent error as to postal cards. There is a question about the proper valuation of the missing postal cards. The Interstate Commerce Act, section 20(11) made applicable to motor carriers by 49 U.S.C. 319, makes a carrier liable for "full actual loss" of property lost in transit. Defendant claims the cards are worth 3 cents each. There is no showing that they were ever used. Plaintiff claims that they are worth only the $ 1,000 cost to the defendant in printing them. There is evidence that on a prior occasion a carton of cards was dropped and got wet. Plaintiff paid only the printing cost for the damaged cards. However, those cards were recovered. It does not appear necessary to reach the question of valuation. The overriding and basic fact here is that when the cards disappeared they were in custody and control of defendant's agents. Plaintiff's driver made an error when he receipted for 600 cartons when he had 120 cartons less. He took the word of defendant's checker that he had a full load. The checker may not have intended to deceive the plaintiff's driver. No witness remembered this particular incident. No witness recalled whether, as occasionally happened, the cartons were briefly placed on the loading platform while the driver and lift-truck operator distributed other cartons inside the trailer to equalize the load on the axles. If this happened, the cards may have, by accident or design, been loaded on another waiting trailer and have been appropriated by its driver to his own use. Speculation is futile here, unnecessary and unrewarding. The issue is, who had the ball when it got lost? He lost it. Defendant was in charge of the cartons when they disappeared. It will have to bear the loss. It follows that plaintiff is entitled to recover. Findings of Fact 1. The plaintiff is a corporation organized and existing under the laws of the State of Delaware, and is a motor common carrier with its principal offices in Akron, Ohio. 2. On September 19, 1958, plaintiff received from defendant a disputed number of cartons of postal cards to be transported by plaintiff from the Government Printing Office, Washington, D.C., to Minneapolis, Minnesota, on Government bill of lading No. PO-312444. On the morning of that date plaintiff's driver signed a receipt for 600 cartons of No. 8 3-cent postal cards which were allegedly loaded on plaintiff's trailer, No. 7051. Upon arrival of the trailer at the interchange point in Chicago the seal on the truck was broken and the postal cards were transferred to the trailer of another carrier. The cargo was counted and it was found that only 480 cartons were on the plaintiff's trailer and that 120 cartons containing 1,200,000 3-cent postal cards, weighing 6,540 pounds and covered by Government bill of lading were not on the trailer.1 3. Upon plaintiff's failure to pay for the "missing" postal cards upon demand, the defendant withheld $ 36,000 from plaintiff's current bills for transportation services. The bills are described in the petition. Plaintiff sues here for the $ 36,000 and the parties agree that plaintiff is entitled to recover that sum on these bills. 4. Defendant asserts an affirmative defense in the sum of $ 36,000 as the alleged value of 1,200,000 3-cent postal cards allegedly loaded on plaintiff's trailer and not delivered by plaintiff. Plaintiff denies that the cards were loaded on its trailer and that defendant's damages would exceed $ 1,000, which was the printing cost to the Government Printing Office in furnishing 1,200,000 cards to the Post Office Department. 5. Defendant also has filed a counterclaim for $ 333.49 representing overpayments for transportation services listed in the petition. Plaintiff admits that defendant is entitled to recover thereon. 6. In the event that the court finds that the 1,200,000 postal cards were loaded on plaintiff's trailer and defendant's damages do not exceed the $ 1,000 of actual printing cost, judgment should be entered for plaintiff in the amount of $ 34,666.51. 7. If the court finds that the 1,200,000 postal cards were loaded on plaintiff's trailer and that defendant's damages are $ 36,000, judgment should be entered for defendant in the amount of $ 333.49 on its counterclaim. 8. If the court finds that the 1,200,000 postal cards were loaded on plaintiff's trailer but that the amount of defendant's damages is more than $ 1,000 but less than $ 36,000, the amount of damages so found would be added to the $ 333.49 and the total deducted from the $ 36,000 otherwise due the plaintiff, and judgment should be entered for plaintiff for the balance. 9. If the court finds that the 1,200,000 cards in issue were not loaded on plaintiff's trailer, judgment should be entered for plaintiff in the amount of $ 35,666.51. 10. On September 16, 1958, the Government Printing Office received only one order for postal cards from the Post Office Department. This order was for 7,500,000 No. 8 3-cent postal cards and 250,000 No. 4 5-cent airmail postal cards for shipment to the postmaster, Minneapolis, Minnesota. The order sheet lists the value of these cards as $ 237,500. 11. Postal cards are printed every day and provide the stock from which Post Office Department orders are filled. The GPO gets as many as six or seven orders per week. The cards are manufactured on the second floor of Government Printing Office Warehouse No. 4, Washington, D.C. The manufacturing procedure, except for stacking finished cartons on skids, is automatic. In 1958 this procedure was basically as follows: As cards were run off the printing machine they were automatically banded in packages of 50 by a paper band. The cards then went to the wrapping machine where they were wrapped in packages of 250. The cards then were separated by a machine into 10,000-card lots and put in cartons. The cartons were placed 40 to a skid. A skid is a wooden platform or sled with two legs and a board across the top forming a platform on which the cartons are stacked. After being loaded, these skids were pulled away from the printing machines and stored in an adjacent area of the same room on the second floor to await shipment. 12. The Stores and Shipping Section of the GPO was located on the first floor of Warehouse No. 4. At the southeast corner of this warehouse there were four bays or areas where trucks were loaded with postal cards and other printed matter. Three trailers could be loaded there at the same time. When a truck arrived at the warehouse the driver would report to the foreman of the Stores and Shipping Section that he was ready to pick up a shipment. In this case, plaintiff's driver had been informed that he was to pick up about 32,000 pounds of postal cards. 13. After the foreman of the Stores Section had ascertained from his records that the load requested by the driver was correct, the procedure was that he would then assign one of his employees as a checker to the truck and would telephone the foreman of the Postal Card Section that the truck had arrived and was ready to be loaded. The checker would then ascertain that the truck was properly backed into the loading bay, would check the number of the truck, verify with the driver the load to be carried and notify the guard who was always on duty at the loading platform that postal cards were to be loaded on the truck. Then the checker went to the elevator to get the postal cards from the Postal Card Section. 14. When the foreman of the Postal Card Section was notified by the foreman of the Stores and Shipping Section that a truck was at the loading platform ready to be loaded, the foreman of the Postal Card Section would mark the skids to be shipped by using a white crayon and marking large figures on one side of the skids. For a load such as here in issue the skids would be numbered consecutively 1 through 15. The cartons are not addressed. They are assembled the day before, near the elevator, to fill the orders to be shipped the next day. 15. Elevator No. 55 was the one used to load postal cards. This elevator could not be opened at the second floor of the Postal Card Section, Warehouse No. 4, without a key. Only three people had a key which opened this elevator door -- the foreman, his assistant and one other employee of that section. When the checker from the Stores Section got to the second floor in elevator No. 55 he would ring a bell sounding in the office of the foreman of the Postal Card Section who would then unlock the elevator door or it would be unlocked by one of the other two individuals in the section who had keys to it. 16. After the door to elevator No. 55 was unlocked, the skids would be loaded three to each elevator load (120 cartons) by means of a small lift truck. When the elevator was filled with a load, the checker would then receipt for the cartons before he was allowed to leave the Postal Card Section. The door to elevator No. 55 was then locked again by a Postal Card Section employee before it could leave that section. This same procedure would be followed for each elevator load of 120 cartons. The original receipt was retained in the Postal Card Section, the duplicate copy was kept by the Stores Section, and the triplicate receipt copy was given to the driver. In the instant case the checker from the Stores Section receipted for five elevator loads, 120 cartons each, of No. 8 3-cent postal cards, or a total of 600 cartons thereof, representing 32,700 pounds. 17. Not only would the cartons be counted by the employees of the Postal Card Section as they were loaded but the checker from the Stores Section would count the number of cartons on each skid while they were being loaded on the elevator in the Postal Card Section and record the number of cartons on each skid on his own checklist. The cartons were so arranged on a skid that the checker could see all 40 at one time. There were two alternative methods of loading cartons on the skids, and under either method all of the cartons were in view of the checker. 18. When elevator No. 55 returned to the first floor of the Stores and Shipping Section, Warehouse No. 4, the postal cards would be taken one skid at a time by a lift-truck operator and loaded directly on the trailer. The operator of the lift truck would sign the checksheet after he loaded the trailer. The checker stayed with the elevator until the last load. He would then go to the platform, get a receipt from the driver, and return it and his checksheet and the receipt of the lift-truck operator to the foreman of the Stores and Shipping Section. In this case plaintiff's driver signed a receipt, No. 5503, for 600 cartons of postal cards loaded on trailer No. 7051. The back of the same receipt shows that the elevator operator and checker signed for the same quantity and another receipt by the lift- truck operator and checker shows the same. All receipts are signed in ink. 19. During the loading process a guard was always on duty on the platform near the trailer to see that no one touched the postal cards other than the employee of the Stores Section operating the lift truck and the driver of the tractor-trailer on which they were loaded. The guard cannot see the postal cards until they come up the ramp to the loading platform. Usually they then go right to the waiting truck but occasionally are set on the platform. Elevator No. 55 is not near the loading platforms. It is on the north side of the warehouse. The loading platforms are at the southeast corner of the warehouse. 20. Both postal and nonpostal card freight was loaded at Warehouse No. 4 and in the fall of the year it was not unusual for trucks to be waiting in line for the loading platforms. Freight was loaded rapidly. Three trailers would normally be loaded at the same time. Plaintiff did not require its drivers to count what was loaded. Drivers ordinarily took the word of the GPO checker that they had received the assigned load and signed receipts on that basis in order to get their trucks out of the way as rapidly as possible so others could be served. Sometimes, prior to 1958, there were errors but none were known to plaintiff in loading postal cards. Plaintiff's driver thought he would have counted the cartons involved here but that if he did so he made a mistake in receipting for 600 cartons. He believed that the Stores and Shipping Section had made an error in the count. 21. In loading a trailer it is necessary to equalize the load on the axles to keep them from breaking. The skids were placed with this in mind. Sometimes it was necessary to rearrange the skids or to distribute the cartons therefrom to equalize the load, to meet weight requirements or to assure that the cartons would not fall. This rearrangement would be done by the driver and lift- truck operator at the loading platform or subsequently by the driver at plaintiff's terminal. A load of 600 cartons would not fill all available cubic space in the trailer. Other freight could be carried with the postal cards and this would be added at plaintiff's terminal before the road trip began. There is no showing of what other freight, if any, was added to trailer No. 7051 on September 19, 1958. 22. Plaintiff's tractor and trailer and cargo were driven from the Government Printing Office, a distance of approximately 3 miles to the Savemore Gasoline Terminal, Inc., 1525 New York Avenue, N.E., Washington, D.C., to be weighed. The weighing usually took about 5 minutes. This leg of the journey ordinarily took about 15 minutes. The driver did not remember this particular shipment but there is no evidence that the trip or weighing on the occasion in question took any more or less time than customary. 23. Shipments, such as in issue, were not sealed when loaded or weighed. Seals were given to the driver at the GPO warehouse and were applied to the trailer by agents of plaintiff when it was returned to plaintiff's terminal and before beginning its ultimate journey. The trip from Savemore to Roadway's terminal was approximately 5 miles and under traffic conditions at the time took from 25 to 30 minutes. 24. The approximate time for a round trip for Roadway's drivers to go from its terminal at 1329 Kenilworth Avenue, N.E., to Government Printing Office Warehouse No. 4 to pick up a load of postal cards, go to Savemore, have the tractor, trailer and cargo weighed, and return to the Roadway terminal was approximately 2 hours and 15 minutes. The trip from the terminal to the GPO normally took plaintiff's driver 30 minutes. It was customary for the Roadway truck dispatcher to record the trip time on a dispatch sheet. That was done in this case. The sheet has been lost and is not in evidence. It was shown to postal inspectors during an investigation of the case in 1958 and is remembered by the individual who was plaintiff's acting terminal manager at the time of the shipment. He testified that on the shipment in issue the driver's dispatch time was 8 a.m. and return time 10 a.m. It was the custom to record the time out and in to the closest 5 minutes. 25. The Government Printing Office maintained a record of the time that loading of postal cards started and the time of completion. In this particular case the record shows starting time at 8:20 a.m. but for unknown reasons no completion time is shown. Loading of 600 cartons of postal cards on a trailer at the Government Printing Office normally took between 45 minutes and 1 hour. 26. The Savemore scales consisted of a solid platform upon which the entire tractor and trailer would be weighed to obtain the gross weight of the unit. A weight ticket was placed in the scales by the weightmaster and the scales automatically stamped the weight on the ticket. The time of the weighing is not shown but the date is filled in with the tractor and trailer numbers by the weigher. The ticket, signed by the weightmaster and by the driver, was a certified weight ticket. The ticket was given to plaintiff's dispatcher upon the driver's return to the terminal. The weight ticket in this case, No. A9445, shows a gross weight of 48,280 pounds for tractor, trailer and cargo. The accuracy of the scales is established by periodic checks by the Federal and District of Columbia Governments. 27. The weight of plaintiff's tractor, No. 6566, was approximately 10,700 pounds, the empty weight of trailer No. 7051 was approximately 10,400 pounds, and each of the 15 skids weighed 75 pounds (1,125 pounds), for a total weight of 22,225 pounds for tractor, trailer and empty skids. When this sum is subtracted from the gross weight as shown on the weight ticket (48,280 pounds) it is evident that the weight of the postal cards was not in excess of 26,055 pounds. The weight of each carton of 10,000 postal cards was 54 1/2 pounds. Six hundred cartons would thus weigh 32,700 pounds. The difference is 6,645 pounds representing the weight of the missing cards. It is agreed 120 cartons were later found to be missing. The stipulated net weight of the 120 missing cartons of cards is 6,540 pounds. A difference of 105 pounds between the figures stated above for the weight of the missing cards is unexplained in the record and is not in issue. 28. Plaintiff's driver on the occasion in issue was an experienced driver who has worked for plaintiff about 10 years. There has never been any question about his honesty or reliability. Defendant does not allege that the driver appropriated the postal cards. There is no evidence that the driver ever left his truck to get coffee or for any other reason between the GPO and the Savemore weight station. 29. As noted in finding 25, loading of the plaintiff's trailer at the GPO commenced at 8:20 a.m. It is agreed by the parties that it took from 45 to 60 minutes to load 600 cartons of postal cards. If it took 50 minutes, the loading would have been completed at 9:10 a.m. The particular driver who hauled this load ordinarily required 15 minutes to drive from the GPO warehouse to the Savemore weighing station and another 5 minutes to weigh the tractor-trailer and its cargo. Thus, the driver would have been on his way back to plaintiff's terminal at 9:30 a.m. The trip from Savemore to the terminal took 30 minutes. He thus would have arrived there at 10 a.m. This was the arrival time testified to by plaintiff's terminal manager. 30. Plaintiff's driver did not remember the particular shipment of September 19, 1958. He has picked up many loads of postal cards under similar conditions before and after September 19, 1958. There was nothing he could recall that made this particular trip different from the others so far as the time required for it was concerned. These drivers begin work about 8 a.m. and do not know where they will go to pick up cargo until told by plaintiff's dispatcher. The weight of the evidence is that the driver did not remove the postal cards from the trailer after they were loaded thereon but that 120 cartons were definitely missing when the tractor-trailer was weighed 15 minutes after leaving the GPO warehouse. If the cards were taken from the trailer after it left the warehouse there is no evidence to show when or how it was done or could have been done within the aforesaid time limits nor is there evidence to show what happened to the cards. 31. In addition to security measures heretofore described about the handling of the movement of postal cards from the Postal Card Section of the warehouse to waiting trucks, defendant had other internal security controls. On days when a shipment of postal cards was made, an inventory was made right after the shipment. This inventory was in addition to the routine daily inventory. Further, each printing press was equipped with a counter. At the end of the work day the foreman recorded the number of cards printed and turned the counters back to zero. The inventory figures were checked daily by the foreman and his stenographer. The presses were not equipped with locked counters at the time in issue. 32. There was no check made by GPO personnel outside the Postal Card Section on production figures reported or the quantity of cards destroyed as waste. Sometimes errors were made in recording the number of postal cards produced. Also, the waste of printed cards was very high. It was not deemed feasible to stop the high-speed presses in order to pull out imperfect cards. When such cards were noted by employees it was necessary to throw away the entire batch in the press at the time in order to dispose of a single imperfection. The only determination of the extent of this waste was a daily computation made by deducting the quantity placed in stock from the total quantity printed. Spoiled cards were shredded before sold as wastepaper. 33. Investigations were conducted by the plaintiff and by the defendant into the matter of the disappearance of the postal cards. The postal inspectors were not called as witnesses but their eight reports were received into evidence without objection. They show that the inspectors considered all reasonable leads and possibilities that might explain the mystery of the missing cards. The inspectors considered and investigated such things as the inventory of the Postal Card Section at the GPO and the possibility that the cards were inadvertently loaded on one of eleven other trailers accepting freight at Warehouse No. 4 on September 19, 1958, or upon one of plaintiff's four other trailers loaded there that day. It was concluded that (a) the 600 cartons were brought down to the GPO loading platform on the morning of September 19, 1958; (b) receipts indicated all 600 cartons were loaded on plaintiff's trailer; (c) only 480 cartons were on plaintiff's trailer when it was weighed at Savemore shortly after departure from the defendant's loading platform; (d) plaintiff's driver did not have adequate opportunity to remove the missing 120 cartons; (e) the missing cards may have been loaded by accident or design on the trailer of some other carrier and later converted by the driver to his own use; and (f) the postal inspectors did not have jurisdiction to investigate the possibility of theft from an interstate shipment and such an investigation could properly be conducted only by the Federal Bureau of Investigation. The plaintiff requested the help of the FBI but was informed that the postal inspectors had jurisdiction. Plaintiff then contacted the postal inspectors who investigated the problem and who in eight reports made between January 19, 1959, and September 9, 1960, reached the conclusions stated above. Plaintiff fully cooperated in the investigation to the extent permitted by defendant. 34. Postal cards can be sold by members of the public and there is at least one instance where this has happened. However, this instance did not have any connection with the missing postal cards in this case nor is there any evidence that the 1,200,000 postal cards here in issue were sold by members of the public. Ultimate Finding 35. On September 19, 1958, plaintiff's driver receipted for 600 cartons of defendant's postal cards for delivery from Washington, D.C., to Minneapolis, Minnesota. When plaintiff's trailer was weighed 15 minutes later, 120 cartons containing 1,200,000 postal cards weighing 6,540 pounds were missing from the cargo. Plaintiff's driver was experienced and reliable. He did not count the cartons as they were loaded by defendant's agents nor was he required to do so. He accepted defendant's advice that he had received his full load. There was insufficient time for the 120 cartons to have been removed from plaintiff's trailer and for the driver to have arrived at the weighing station, as he did, on schedule. The weight of the evidence is that the postal cards, though brought to the loading platform for plaintiff's trailer, were not loaded thereon. They disappeared while in the custody and control of defendant's agents. Plaintiff's damages are $ 35,666.51. Recommendation for Conclusion of 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 the sum of $ 36,000. It is further concluded that defendant is entitled to recover on its counterclaim the sum of $ 333.49, which is to be offset against plaintiff's recovery. Therefore, it is adjudged and ordered that plaintiff recover of and from the United States the sum of thirty-five thousand six hundred sixty-six dollars and fifty-one cents ($ 35,666.51). On December 27, 1963, defendant having consented to the entry of judgment in favor of plaintiff in accordance with the findings and recommendation of the trial commissioner, the court adopted the same and ordered that judgment be entered for plaintiff for $ 35,666.51. December 27, 1963 _______________ 1 The original shipment described on United States Government freight waybill No. PO-312444, dated September 19, 1958, was for 800 cases or cartons of postal cards. Two hundred of these cartons were loaded on trailer No. 7598 and were received by the postmaster in Minneapolis in proper order. This case is concerned only with that portion of the shipment represented by 600 cartons supposedly loaded on another trailer, No. 7051, and sealed with Government seal No. 7231.