[No. 1186,

February 25th, 1908.]

#### PECOS VALLEY & NORTHEASTERN RAILWAY CO., Appellant, v. F. H. HARRIS, Appellee.

SYLLABUS.

It is beyond the -power of either railroad company or shipper to- make a valid contract for less rate than the public schedule filed -with the Interstate 'Commerce Commission, and notwithstanding such a contract the liability ofi the shipper is the rate so published and filed.

Appeal from the District Court for Chaves County, before Edward A. Mann, Associate Justice.

Reversed and Remanded.

W. C. Reid, for Appellant.

Where a question is submitted as to a particular fact which is .pertinent to the issues, and necessarily to be determined by the jury, the court -has no discretion to refuse-L. L. & G. R. Co. v. Rice, .10 Kas. 426; Bent v. Phil-brick, 16 Kas. 191, 19.2;. Briggs & Watson v. Eggan, 1.7 Kas. 589; Green.v. Browne-Manzanares Gq., 11 N M. 66.8; Ene. P. & P., 310 and note, 317, 318; Compiled Laws,1897. sec. 2993; Kansas Laws of 1874, ch. 91, sec. 1; Robinson v. Palatine Ins. Co., 66 Pac. 535. ■ • ■ •

There can b.e but one rate and classification in force, and that is the one regularly filed with the Interstate Commerce Commission. 25 Stat. at Large 855, 3 Eed. Anno. 827; IJ. S. v. Planley, 71 Eed. 674; Mo. Ry. Co. v. Trinity Lumber Co., 1 Tex. Civ. App. 553; Mo. etc. R. R. Co. v. Stoner, 5 Tex. Civ. App. 50; Dilinger v. Eisli, .1 Tex Civ. App. 546; Gulf Col. & Santa Fe R. R. Co. v. Nelson, 4 Civ. App. 345; R. R. Co. v. Hefley, 158 U. S. 98, 72 Am. State Rep. 941, 43 L. R/ A." 385;'Southern .Ry. Co. v. Harrison, 119 Ala. 539; IJ. S. v.'Wood, 145 Fed. 405; St. Louis & San Francisco R. R. Co'., vi ¡ Gstlandér, 66 Ark. 567; Moore on-Carriers (1906) sec. 11, p. 935; H. S. v. Michigan Cent. Ry. Co., 43 Fed. 26.

Shippers are presumed to know of the existence of published schedules and the necessity of compliance therewith. They will he held to have contracted with reference *411to the rates fixed by such published schedule, regardless of any contract that may be made by any person or agent of any railroad having a published tariff. R. R. -v. Hub-bell, Kas., 38 Pac. 266; Gerber v. Wabash R. R. Co., 63 Mo.> App. 145; Railway Co. v. Dismukes, 17 L. R. A. 113, 94 Ala. 131, overruled' by Southern Railway Co. v. Harrison. 119 Ala. 539; Church v. Minneapolis R. R. Co., 14 So. Dak. 443.

It was errror to admit contracts in evidence that were absolutely and fatally at variance with the pleadings. 2 Greenleaf on Evidence, secs. 11 to 13.

No APPEARANCE EOR APPELLEE.

OPINION OP THE COURT.

PARKER, J.

This was an action brought by the appellant for the recovery of the amount of freight due from the appellee upon a shipment of freight from Kansas City, Missouri, to Roswell. •

The .appellee secured from the appellant a'bill of lading, which classified the freight as “an emigrant- outfit”, while the contention was made that the freight was in 'fact “a grader’s outfit.”

The court below tried the case upon the theory that if the appellee had obtained from the appellant a contract for the shipment of goods, the contract furnished the measure of recovery, notwithstanding the same may have been for a less rate than that established by the appellant and filed with the Inter-State Commerce 'Commission, as required by the Federal. Statute.

This was erroneous. It is beyond the power of either a railroad company or a shipper to 'make' a valid contract for a less rate than the published schedules filed with the Inter-State' Commerce Commission and notwithstanding a- contract of this kind, the measure of liability' of the shipper is the rate so published and filed. R. R. v. Mugg &. Dryden, 202 U. S. 242.

For the -reasons stated, the-judgment of the court below is reversed and the cause remanded with instruction's to award a new trial and proceed in accordance with this opinion. . . • ,