The case of Smith v. Railroad Co., 88 S.C. 425,70 S.E. 1057, 34 L.R.A. (N.S.) 708, was relied upon in the Circuit Court and in this Court to sustain plaintiff's case. But it seems to have been overlooked that no question of interstate commerce was raised or decided in that case. If it had been alleged and proved in that case, as it was in this, that the mileage ticket in question was sold in accordance with the tariff filed with the interstate commerce commission, and published, as required by the act to regulate commerce, a very different phase would have been presented.
As I understand, it was conceded in the Court below that the ticket was not good over the Georgia Railroad — that is, from Augusta to Atlanta. The Circuit Judge so held and so charged the jury, and, therefore, it is the law of the case. But plaintiff's recovery is sustained on the ground of the misrepresentation of the defendant's agent at Denmark, who sold the ticket, and told plaintiff that it was good over that road, and could be used by her for passage from Augusta to Atlanta. Assuming that the misrepresentation was made, it was as to a matter of law, to wit, the tariff on file with the commission, and the rights of plaintiff thereunder, which the plaintiff was conclusively *Page 105 presumed to know. Therefore, no misrepresentation as to such matter, even if made wilfully, would give rise to a cause of action. The Supreme Court of the United States, whose decisions upon the question are controlling, has expressly so held in numerous cases, some of which are cited in the opinion of this Court in Aldrich v. Railroad Co.,95 S.C. 427, 79 S.E. 316.
I think, therefore, the judgment should be reversed, and the complaint dismissed.
NOTE: This case has been carried on writ of error to the United States Supreme Court.