This is an action by Hadley Alvord, shippers, against the Fort Worth Rio Grande Railway Company, Red River, Texas Southern Railway Company and St. Louis, San Francisco Texas Railway Company, carriers, for damages to a shipment of cattle from Dublin, Texas, to East St. Louis, Illinois, resulting in a verdict and judgment for the plaintiffs in the sum of $1,551.79, with interest. The defendants in the action have appealed, and the appellees have presented a formal motion suggesting that the appeal was taken for delay, and ask that the judgment be affirmed with ten percent damages.
There are only four assignments of error presented in appellants' brief, all of which predicate error upon the ruling of the court in admitting in evidence the testimony of certain witnesses tending to show an agreement upon the part of appellants' agent at Dublin to deliver the cattle in East St. Louis for a particular market; whereas the written contract of shipment subsequently entered into between the parties stipulated that no agent had the authority to make such an agreement, which agreement the carrier expressly declined to enter into. Upon this point the court, however, instructed the jury as follows: "All evidence introduced as to alleged statements made by Mr. Troxell, the railroad's station agent at Dublin, to the effect that said cattle would be transported by defendants from Dublin to East St. Louis in time for the market of Tuesday, April 29, 1902, is excluded from your consideration, and you will not consider the same for any purpose." And again instructed them that "the defendants were not, under the law, bound absolutely and unconditionally to transport the cattle in controversy from Dublin to East St. Louis in time for the market of Tuesday, April 29, 1902, but they owed the duty, under the law, to exercise ordinary care to transport the same within a reasonable length of time and with reasonable safety." So that, if the admission of the testimony could be held to be erroneous, it nevertheless is quite certain that no harm resulted to appellants from the ruling of the court. But we are inclined to believe the testimony was properly admitted in the first place, not to establish an oral contract for the delivery of the cattle in East St. Louis for Tuesday's market, but as bearing upon the issue of negligence in failing to deliver them under the written contract at that time. *Page 601
The suggestion of delay, opening up the entire record as it does, requires us to reverse for errors though not assigned. But we have failed to find any which would require a reversal of the case.
We are constrained to hold that there was no just cause for appeal in this case, and that the appeal was evidently taken for delay only, and therefore sustain appellees' motion to affirm the judgment of the District Court, together with ten percent damages thereon.
Affirmed with damages.
Affirmed.