Roadway Express, Inc.

                           No. 357-61

                         163 Ct. Cl. 578


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

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

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

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 $

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 $

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.