Frank Com and Joe N.

Payne brought this suit against the Kansas City, Mexico & Orient Railway Company of Texas, which we will designate as the “Orient,” and the Galveston, Harrisburg & San Antonio Railway Company, to recover damages to a shipment of 15 cars containing 808 head of cattle shipped from Marathon, Tex., to Hardy, Okl. The shipment moved from Marathon to Alpine, Tex., over the line of the second-named defendant; thence to destination over the line of the Orient and its connecting carriers. Eleven cars of the ■shipment containing 592 head were shipped under a written contract at a reduced rate. In consideration of such reduced rate, it was stipulated in the bill of lading, as follows:

“In case of total loss of any of the live stock covered by this contract from any cause for which said first party shall be liable, it is agreed that the value thereof is the actual cash value of the same at the time and place of shipment, but in no case to exceed $100.00 for each horse, mare, pony, gelding, stallion, mule or jack; $30.-00 for each ox, bull or steer; $30.00 for each cow; $10.00 for each calf or hog; $3.00 for each sheep or goat; and in case of injury or partial loss the amount claimed shall not exceed the same proportion.”

In the contract the animals are designated as calves. The record is silent as to the nature of the contract under which the remaining four cars containing 216 head were shipped. The plaintiffs executed a 36-hour release, whereby the carrier was authorized to keep the cattle in the cars for that length of time without feed,' water, or rest, if it became necessary so to do in order to reach destination. At the time of the shipment, the line of the Orient was being operated by receivers, who have since been discharged. In the order of discharge the property of said defendant was charged with all liabilities incurred by the receivers arising out of operation, and said defendant assumed all such liabilities.

With the exception of one head which was left at Benjamin, Tex., all of the animals were delivered alive at destination. Whatever injuries they sustained while in transit were occasioned by delays and improper handling to which they were subjected while in transportation over the Orient line. The evidence does not disclose any undue delay or improper handling of the shipment while in possession of the initial carrier and connecting lines of the Orient. The train transporting this shipment was delayed for some hours at Benjamin, Tex., on the Orient line, and at that point the cattle were unloaded and placed in pens for feed, water, and rest. There is evidence that these pens were muddy and sloppy and in an unsuitable condition. The delay at Benjamin was occasioned by a wreck some distance north of that place at Crowell Water Station. One animal was left in the pens at Benjamin which was thereafter converted by the receivers or their station agent at that point.

The cause was submitted to a jury upon special issues. The issues and answers thereto are here given, viz.:

“1. Was the shipment of cattle in question handled by the railway companies with a reasonable'degree of care and caution? Answer: No.

“2. Were the .railway companies negligent in handling the shipment of cattle in question? Answer: Yes.

“3. Were the stock pens and watering troughs therein at Benjamin, Tex., where the cattle were loaded, in a reasonable good condition? Answer: No.

“4. What was an ordinarily reasonable time for the transportation of the cattle from Marathon, Tex., to Hardy, Okl.? Answer: Sixty hours.

“5. Was the time that the cattle were in *809 transit from Marathon, Tes., to Hardy, Okl., in ordinarily reasonable time? Answer: No.

“6. How long were the cattle in question in transit from Marathon, Tex., to Hardy, Okl.? Answer: About 48 hours and 45 minutes.

“If you have found that the railway companies were negligent in handling the cattle in question and there were unreasonable delays, in their transportation,- then answer the following questions:

“7. What was the market value of the cattle at Hardy, Okl., at the time they arrived there, but for such negligence or delays? Answer: $30 per head.

“8. What was the intrinsic value of the cattle at Hardy, Okl., at the time they arrived there, but for such negligence or delays? Answer: $30 per head.

“9. What was the market value of the cattle at Hardy, Okl., at the time and in the condition that they arrived there? Answer: $28.50 per head.

“10. What was the intrinsic value of the cattle at Hardy, Okl., at the time and in the condition that they arrived there? Answer: $28.-50 per head.

“11. What was the value of the one cattle left at Benjamin, Tex., and sold by the railroad company’s agent to Mr. Moorehouse, but for its injuries, if any. Answer: $30. What was its value in the condition in which it was when sold? Answer: $25 in condition in which it was sold.

“12. Were the cattle handled by the railroad company in an ordinary reasonable degree of care, prudence, and caution? Answer: No.”

Judgment was rendered in appellees’ favor for $1,417.25, and the defendants have prosecuted this appeal therefrom.

[1] It is assigned as error that the court erred in the measure of damage applied. The assignment is well taken in so far as concerns the 592 head of calves covered by the written contract. The shipment was interstate, at the reduced rate prescribed by the Interstate Commerce Commission, and the limitation upon the defendant’s liability contained in the contract was valid and enforceable. Railway Co. v. Harriman, 227 U. S. 664, 33 Sup. Ct. 397, 57 L. Ed. 690; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Railway Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Railway Co. v. Carmack, 176 S. W. 158.

[2] 'The findings of the jury establish that there was a depreciation in value of $1.50 per head, or 5 per cent. The value of the calves was limited to $10 per head, and, under the last clause of the provision in the contract, appellees in their recovery therefore should have been limited to 5 per cent, of such valuation, namely, 50 cents per head on the 592 head.

[3, 4] As to the animal left at Benjamin, the evidence discloses that it was sold by the station agent at Benjamin for $20 and the proceeds converted by the agent or the receivers. The cause in question can have no application in the ease of a deliberate conversion, to their own use and benefit by the defendant or its agents, of property or its proceeds. It was not a loss within the meaning and purview of the contract. Furthermore, there is nothing to indicate whether this animal was one of the 592 head shipped under the contract containing the limited liability clause. Appellant is liable for the value of the %nimal at destination in the condition in which it should have arrived but for its negligence. .

[5] As to the remaining 215 head, appellant is liable for the full amount of the depreciation caused by its negligence.

[6] It is suggested by appellees that the animals were too old to be regarded as calves. In reply to .this, it is sufficient. to say that they were classified in the contract as calves, and appellees are not in position to claim that their proper classification was as older animals. , -

[7] Upon the trial, the plaintiff Payne was permitted to testify to the value of the cattle at destination at the time they should have arrived if handled in the usual ordinary time and with due care and dispatch.. The testimony of the witness was a mixed question. of law and fact. It invaded the province of the jury, and its. admission was error. Railway Co. v. Kimble, 49 Tex. Civ. App. 622, 109 8. W. 234; Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 808; Railway Co. v. Bigham, 138 S. W. 432; Railway Co. v. Beckham, 152 S. W. 229.

It was especially objectionable in view of the fact that the witness had previously testified that he did not know the usual and ordinary time required to transport such shipments over the route these animals traveled.

[8] The ninth and tenth assignments in effect are that judgment in. favo?, of plaintiffs was improperly rendered because the cattle-were shipped by Com to E. B. Rogers, and there is no evidence that Payne was the lawful holder or owner of the bill of lading, or that he was the owner of the cattle at the time and place of shipment.

The testimony shows that Payne was a joint owner of the cattle with Corn, and, as such, he was properly joined in the suit. There is nothing in the Carmack amendment to deprive Payne of his right td join in the suit and recover.

[9,10] There was no reversible error in-permitting Payne to testify that there was no attempt to feed and water the cattle at any other place than Benjamin. This was an admitted'fact, so it'could not have been error to permit Payne to testify to it. Nevertheless, the pertinency of the testimony is not apparent, and it should therefore not have been admitted.

The twelfth assignment complains of the admission of testimony of the contents of a-telegram which Payne said he tried to send to one Mr. O’Brien. An examination of the bill fails to disclose that he testified to the contents of the message, so the assignment is complaining of something that is not shown to have occurred.

[11] The testimony complained of in the thirteenth assignment is inadmissible. It *810 was testimony by Payne of a conversation which he heard take place between the conductor of his train and some employé of the Orient’s receivers, relative to the cause of the wreck, which delayed the shipment. The conversation was clearly inadmissible, as the party making the statement was not shown to have any authority to make the same. He was shown merely to be an em-ployé and that he had something to do with the road.

[12] The fourteenth assignment is that the first issue submitted imposed a higher duty upon defendants than the law requires. The issue reads:

“Was the shipment of cattle in question handled by the railway companies with a reasonable degree of care and caution?”

The objection urged is without merit. It was the duty of the defendants to handle the cattle with a reasonable degree of care and caution. We are not to be understood as holding that this issue was not otherwise subject to exception. We are confining ourselves to the particular exception urged.

[13,14] The fifteenth assignment complains of the submission of the fourth issue because there was no evidence of what was an ordinarily reasonable time for the transportation of cattle from Marathon to Hardy. In support of the assignment, it is stated that there is no evidence upon the issue. This statement of fact is not contested by appel-lees, and we will assume it is true. Rule 41 (142 S. W. xiv). It thus follows that the issue should not have been submitted.

[15] The objection urged to the fifth issue was too general, for which reason the sixteenth assignment is overruled.

[16] The twenty-third assignment complains of the refusal of this charge?

“You are instructed that, when the train conveying the cattle in question came back to Benjamin from Crowell Water Tank, the receivers of the railway company then operating the road were required by the federal statutes to give the train crew operating said train not less than ten hours’ consecutive rest; that is to say, that said train crew would not again operate said train until they had such period of rest.”

It was properly refused, because it was irrelevant and would have been of no service to the jury in passing upon the issues submitted to it.

[17,18] Special charge No. C was argumentative and properly refused for that reason. The twenty-fourth assignment is therefore overruled.

The twenty-fifth assignment is overruled because charge C-l was argumentative and upon the weight of the evidence.

Special charge No. D was argumentative -and upon the weight of the evidence and ■properly refused.

Special charges Nos. F and H were argumentative and properly refused.

The seventeenth, eighteenth, nineteenth, ■twentieth, twenty-first, twenty-second, and thirtieth assignments are regarded as being without merit, and are overruled.

Reversed and remanded for the reasons indicated.