465

Reporter's Statement of the Case

three o'clock a. m. November 17, 1934. Plaintiff resumed work November 17, 1934, at one o'clock p. m. and completed moving the Alcohol Tax Unit about midnight of that day. At no time during the moving of the Alcohol Tax Unit was plaintiff, when ready and willing to continue work, prevented from carrying out its moving operations by reason of defendant's dismissal of elevator operators.

7. The contract required plaintiff to protect passenger elevator No. 3 in the new Custom House by boarding and padding and permitted plaintiff to use passenger elevators Nos. 1 and 2 provided they were similarly protected. Pursuant to said contract and specifications plaintiff began its moving operations on November 1, 1934, with the use of only elevator No. 3. When it appeared that its trucks transferred furniture and equipment to the new Custom House faster than one elevator could move them, plaintiff during the first week of November boarded and padded elevators Nos. 1 and 2 and thereafter, during its moving operators, plaintiff was permitted to use these elevators in addition to elevator No. 3.

The elevator service furnished plaintiff during its moving operations at all times met requirements of the contract between plaintiff and defendant and was adequate thereunder.

8. Prior to moving of the Veterans' Administration, the Supply Officer and Deputy Supply Officer of that activity took an inventory of all property belonging to the Veterans' Administration at 33rd and Arch Streets. After the activity was moved by plaintiff to the Custom House a second inventory revealed as missing from the office equipment of the Administration two Underwood typewriters, Model 5. The loss of the two typewriters was caused by lack of due care on the part of plaintiff during moving operations in leaving the office equipment and furniture at times unguarded on the sidewalk of a busy city street. The reasonable value of the two typewriters at time of loss was $52.50.

9. During moving operations, damage was done to the edges of the elevators in the new Custom House. Plaintiff protected the elevators in question by boarding and padding in accordance with requirements of the contract, and the damage done was in each case to a part of the elevator

291825-41-CC-vol. 92----32

Opinion of the Court

92 C. Cls.

which it was not feasible to protect by padding. During the period when plaintiff was engaged in transferring the thirteen governmental activities to the new Custom House, elevators Nos. 1, 2 and 3 were used for moving furniture, office records, equipment and supplies by men employed by the various activities and by movers other than plaintiff. It is not established by a preponderance of the evidence that any damage to the elevators was caused by the employees of plaintiff.

The court decided that the plaintiff was entitled to recover.

WHALEY, Chief Justice, delivered the opinion of the

court:

This action is brought to recover the sum of $320.70 under a contract with the defendant, executed on June 25, 1934. The plaintiff undertook, for the sum of $3,733, to move certain furniture, miscellaneous office records, supplies, and equipment of thirteen branches or activities of the defendant to the new Custom House and Appraisers' Stores Building in Philadelphia, Pennsylvania.

No question of law is presented,-only questions of fact. The first item on which plaintiff claims recovery is the alleged failure of the defendant to provide adequate elevator service at the new Custom House during the full eight hour period for which it had to pay its employees, with the result that the plaintiff's employees were idle for periods of the full eight hour shifts. The curtailment of the elevator service caused the plaintiff the loss of services of the employees during these hours, and entailed the loss to plaintiff in the sum of $211.20. The evidence is somewhat conflicting. The burden of establishing the facts of a case is on the plaintiff, and after a careful examination of the testimony, the court is of the opinion that the plaintiff here has failed to prove by the greater weight of the evidence that the elevator service was curtailed during the hours when the plaintiff was ready and willing to work. Recovery on this item is denied.

During the moving operations two typewriters were lost, and a deduction of $52.50 was made by the defendant from the contract price, and the plaintiff seeks as its second claim the allowance of this amount.

465

Reporter's Statement of the Case

The evidence clearly establishes that while moving the equipment of the Veterans' Administration the employees of the contractor left the typewriters and other articles standing unguarded on the sidewalk of the street in front of the Custom House. This street was in a crowded downtown section of Philadelphia, and was used heavily by pedestrians. It was necessary for these people to pass through the aisles of this unguarded equipment and furniture. Leaving this property without custodians was not the exercise of due care and reasonable protection, and was the proximate cause of the loss. No recovery can be had on this item.

The defendant deducted from the contract price the sum of $57 for damage to the elevators by plaintiff's employees. These elevators were used by other contractors to carry heavy furniture and cabinets. The evidence is convincing that the employees of plaintiff exercised due care in loading the elevators, and whatever damage was done was not due to the negligence of plaintiff's employees. The plaintiff is entitled to recover on this item.

Judgment will be entered for plaintiff in the amount of $57. It is so ordered.

LITTLETON, Judge; and GREEN, Judge, concur.

JONES, Judge; and WHITAKER, Judge, took no part in the decision of this case.

CHRISTOPHER S. LONG v. THE UNITED STATES

[No. 43642. Decided February 3, 1941]*

On the Proofs

Pay and allowances; rental and subsistence allowances of retired Navy officer under special Act.—Decided upon the authority of Sweeney v. United States, 82 C. Cls. 640; and Ralston v. United States, 91 C. Cls. 91; 311 U. S. 687.

The Reporter's statement of the case:

King & King for the plaintiff.

Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

Vacated April 29, 1941.

Reporter's Statement of the Case

92 C. Cls.

The court made special findings of fact as follows:

1. On November 19, 1926, plaintiff accepted appointment as Acting Chaplain in the United States Navy, with the rank of Lieutenant, junior grade, his rank to date from November 6, 1926.

2. On June 30, 1930, the President of the United States approved an Act (46 Stat. 1951) reading as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President is authorized to place Lieutenant (Junior Grade) Christopher S. Long, Chaplain Corps, United States Navy, upon the retired list of the Navy with the retired pay and allowances of that rank: Provided, That a duly constituted naval retiring board finds that the said Christopher S. Long has incurred physical disability incident to the service while on the active list of the Navy.

3. Subsequently, the plaintiff appeared before a duly constituted Naval Retiring Board, which found that he was permanently incapacitated for active service, and that his incapacity resulted from an incident of the service.

4. On October 3, 1930, the President approved the proceedings and findings of the Naval Retiring Board, and ordered plaintiff placed on the retired list of the United States Navy, with the rank of lieutenant, junior grade, Chaplain Corps, effective as of January 1, 1931.

5. On August 1, 1931, plaintiff had three dependents, consisting of a wife, Gwendoline Ellen Long, a daughter, Audrey Gwendoline Long, born April 11, 1922, and a son, John Stanley Long, born April 25, 1929. All of them have continuously resided with him since August 1, 1931, and have been dependent on him for their support.

6. Since being placed on the retired list, plaintiff has received the retired pay of an officer of his rank and length of service, but has received no rental or subsistence allowances.

7. If entitled to the rental and subsistence allowances of an officer of his rank and length of service, with dependents, from August 1, 1931, to June 30, 1938, the date of the latest available roll on file in the General Accounting Office, there is due him the sum of $7,676.84, as computed by the General Accounting Office. Plaintiff's claim is a continuing one.

469

Opinion of the Court

8. Plaintiff's petition was filed on August 31, 1937. If that portion of his claim which accrued prior to August 31, 1931, is barred by the statute of limitations, there should be deducted from the amount due him the sum of $96.00, representing rental and subsistence allowances for the period August 1 to August 30, 1931.

The court decided that the plaintiff was entitled to recover.

JONES, Judge, delivered the opinion of the court:

This suit was instituted by the plaintiff to recover the rental and subsistence allowances of his rank, with dependents, from August 1, 1931.

He had been commissioned as Acting Chaplain in the United States Navy with the rank of lieutenant, junior grade, effective as of the date of November 6, 1926.

The special act under which the claim was filed was approved by the President of the United States on June 30, 1930 (46 Stat. 1951) and reads as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President is authorized to place Lieutenant (Junior Grade) Christopher S. Long, Chaplain Corps, United States Navy, upon the retired list of the Navy with the retired pay and allowances of that rank: Provided, That a duly constituted naval retiring board finds that the said Christopher S. Long has incurred physical disability incident to the service while on the active list of the Navy.

On October 3, 1930, the President approved the proceedings and findings of the Naval Retiring Board which had found that he was permanently incapacitated for active service and that his incapacity resulted from an incident of the service.

The plaintiff's petition was filed on August 31, 1937.

The facts are undisputed. The law is clear. Exactly similar questions were presented to the court in the case of Sweeney v. The United States, 82 C. Cls. 640, and Ralston v. The United States, 91 C. Cls. 91. In the latter case an application for writ of certiorari was denied by the Supreme Court on October 21, 1940. (311 U. S. 687.)