{
  "id": 5252407,
  "name": "National Starch and Chemical Corporation, Plaintiff-Appellee, v. McNamara Motor Express, Inc., Defendant-Appellant",
  "name_abbreviation": "National Starch & Chemical Corp. v. McNamara Motor Express, Inc.",
  "decision_date": "1963-04-08",
  "docket_number": "Gen. No. 48,847",
  "first_page": "484",
  "last_page": "491",
  "citations": [
    {
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      "cite": "40 Ill. App. 2d 484"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "case_ids": [
        699327
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      "case_paths": [
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    {
      "cite": "264 US 560",
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      "case_ids": [
        6142850
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    {
      "cite": "225 US 155",
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        11338729
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/225/0155-01"
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  "last_updated": "2023-07-14T19:54:49.038379+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "National Starch and Chemical Corporation, Plaintiff-Appellee, v. McNamara Motor Express, Inc., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE BURMAN\ndelivered the opinion of the court.\nPlaintiff brought this action in the Municipal Court of Chicago to recover for damages sustained when a shipment of glue carried by defendant was exposed to freezing temperatures. Defendant appeals from an adverse judgment in the amount of $1,427.38.\nThe essential facts were stipulated. On January 22, 1959, plaintiff delivered to defendant, a common carrier, a shipment of thirteen drums of liquid glue, weighing almost 7,000 pounds. This amount does not constitute a full truckload. The shipment was delivered to defendant in a heated truck and the attached bill of lading had a stamped notation: \u201cPROTECT AGAINST FREEZING BELOW 40\u00b0 F.\u201d Defendant accepted the shipment and delivered it to Three Rivers, Michigan, where it was consigned to another carrier and delivered to the purchaser in Three Rivers. While in transit, the thirteen drams of glue were subjected to temperatures below forty degrees fahrenheit, but no heat was provided as requested in the bill of lading. This resulted in damage to eight drums.\nDefendant\u2019s theory is that, (1) its published tariffs, under which plaintiff shipped the glue, do not provide for protective service for less than a full truckload; and (2) under the Interstate Commerce Act, carriers may not provide a service not offered in its published tariffs. Therefore, defendant concludes, it cannot be held liable for the damage sustained by plaintiff.\nSince the enactment of the Federal laws regulating carriers engaged in interstate commerce, the Supreme Court has held that carriers are bound by their published rates and services and that they cannot provide special services not contemplated by the published tariffs. This is true even if the carrier has specifically contracted with the shipper to provide the service. Chicago & Alton R. R. Co. v. Kirby, 225 US 155. Thus, the contract between the carrier and shipper is not the bill of lading alone, but is the bill of lading plus the published tariffs. And if there be conflicts between the bill of lading and the published tariffs, the published tariffs control.\nThe reason behind the rule is that the interstate commerce acts are designed to prevent discrimination among shippers by carriers. Therefore, a contract by the carrier to provide a service not included in the published tariffs is void since, \u201c[t]he paramount requirement that tariff provisions be strictly adhered to, so that shippers may receive equal treatment, presents an insuperable obstacle to recovery.\u201d Davis v. Cornwell, 264 US 560, 562.\nSince the stipulated facts admit the glue was damaged by defendant\u2019s failure to provide heat protection as requested in the bill of lading we pass on to the main question, to wit, do defendant\u2019s published tariffs relieve it from liability for failing to provide the protective service specified in the bill of lading.\nCertain portions of defendant\u2019s published tariffs were presented. The pertinent provisions begin with Buie 23:\nACCEPTANCE SUBJECT TO CAPACITY AND APPEOPBIATE TYPE OF VEHICLES\nSec. 2. Bates or ratings provided on freight requiring protection from heat or cold do not obligate the carrier to provide refrigeration, heater service or vehicles specially equipped for such protection, except as otherwise provided in carrier\u2019s tariffs. . . .\nSupplement No. 54 to Central States Motor Freight Bureau Tariff 205-E \u2014 Item 180-0 provides an exception to the above rule:\nTraffic requiring heater or refrigerator service will be accepted (except as otherwise provided in Note 1 to 20 below) only when suitable equipment is available. When suitable equipment is available, heater or refrigerator service will be furnished subject to charges provided in Items 110 and 200 of C.S.M.F.B. Tariff No. 500-F, MF-1C.C. No. 874, except as otherwise provided therein.\nWhenever heater or refrigerator service is necessary for the proper protection of shipment, cosigner or owner shall notify carrier in advance of shipment.\nThe exceptions listed in Notes 1 to 20 are not applicable as defendant is not referred to in any of the notes.\nSupplement No. 11 is as follows:\nItem 110-A\nHEATER SERVICE (See Notes 1 and 2)\nExcept as otherwise provided, shipments subject to truckload rates do not include the cost of furnishing protective service against cold. When shipments require protection against cold and carrier is requested to furnish Heater Service, carrier will, subject to equipment available, furnish Heater Service subject to charges named below.\nWhen carrier furnishes Heater Service, charges for such service will be in addition to transportation and all other lawful charges applicable to the shipment.\nWhen truckload rate is as provided in Column A below the charge for Heater Service shall be as shown in Column B. Charges will be computed on the truckload minimum weight or actual weight if greater.\nColumn A Column B\nIn Cents Per 100 Pounds\nNot over 112................: 6\nOver 112 not over 169........: 6%\nOver 169 not over 225........: 7\nOver 225 not over 337........: 8\nOver 337....................: 8%\nNOTE 1. \u2014 The charges named in this item will not apply on local (single line) traffic for account of the carriers named in Item 111 to the extent indicated therein.\nNOTE 2. \u2014 The charges named in this item will not apply on join line traffic for account of the carriers named in Item 112 to the extent indicated therein.\nItems 111-G.\nRULES AND REGULATIONS EXPLANATION\nAPPLICABLE ONLY AS AND WHEN SPECIFIC REFERENCE IS MADE HERETO\nThe Charges for Heater Service named in Item 110 will not apply on local (single line) traffic for account of the following Carriers to the extent indicated:\nMcNamara Motor Express, Inc., all traffic\nThe court heard testimony of only one witness at trial. Defendant called, as an expert witness, Mr. John W. Striclder, a member of the Inspection and Weighing Bureau of the Central Motor Freight Association of Illinois. On direct examination by defendant\u2019s counsel, Mr. Striclder testified that under Rule 111 G McNamara was not required to furnish heated service for less than truckload shipments. On cross examination, plaintiff\u2019s counsel asked Mr. Striclder to explain Item 180-0 (quoted above). Mr. Strickler\u2019s explanation was as follows:\n180-0 states that traffic requiring heated service will be accepted subject to further conditions and those are that suitable equipment be available and that previous notice be given to the carrier.\nCounsel then posed the following question:\nAnd if these conditions are met is the service required?\nMr. Strickler answered:\nYes, the service is required.\nLater, in response to a hypothetical question framed so that it presented the facts involved in the present controversy, Mr. Strickler stated:\n... If McNamara accepted that shipment with the specific agreement that they would protect against the cold, then I would say that they are liable. . . .\nWe agree with defendant\u2019s counsel that Item 110-A of McNamara\u2019s published tariffs does not provide rates for protective service on less than truckload shipments and that under this provision McNamara was not obligated to provide the heated service requested. However, the other quoted tariff provisions provide that McNamara may provide the requested service if it has suitable equipment and if advance notice is given. Such was the situation here. At best, the tariffs are unclear and ambiguous, a fact borne out by Strickler\u2019s testimony. Under such a situation, any ambiguity or reasonable doubt must be resolved against the carrier. United States v. Missouri Pacific Railroad Co., 250 F2d 805.\nFinally, defendant has relied on Northwestern Fruit Exchange v. Erie R. Co., 248 Ill App 193. There, as here, the shipper brought suit against the carrier to recover damages sustained when the goods were not protected from the cold. Recovery was denied. Unlike the instant situation, the rules of classification there involved provided specifically that the shipper was responsible for providing heat.\nAs no question was raised as to the care used in the movement of the goods in question, we can only conclude, under the stipulated facts, bill of lading and tariffs before us, that defendant failed to provide a service it agreed to and could provide. Therefore, the judgment below must be affirmed.\nAffirmed.\nMURPHY and ENGLISH, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE BURMAN"
      }
    ],
    "attorneys": [
      "Rugen, Ligtenberg & Goebel, of Chicago (Alvin W. DeJong, of counsel), for appellant.",
      "Paul J. Maguire, of Chicago (Haskins, Maguire and Haskins, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "National Starch and Chemical Corporation, Plaintiff-Appellee, v. McNamara Motor Express, Inc., Defendant-Appellant.\nGen. No. 48,847.\nFirst District, First Division.\nApril 8, 1963.\nRugen, Ligtenberg & Goebel, of Chicago (Alvin W. DeJong, of counsel), for appellant.\nPaul J. Maguire, of Chicago (Haskins, Maguire and Haskins, of counsel), for appellee."
  },
  "file_name": "0484-01",
  "first_page_order": 494,
  "last_page_order": 501
}