right of way, so to speak, with a pavement | have seen, on the undisputed facts the tracof crushed stone, and for its pro rata share of this work the defendant paid. tion company had no proximate or responsible connection with the wrong and injury of which the appellees complain. The prin can therefore have no just application to this case, even though it be conceded that judgments in tort are not generally severable-a concession we are not prepared to make, in view of our statutes which make the obligation of parties bound by judgment several as well as joint. Code, § 2503. Most of the exceptions shown by the record were reserved specifically on behalf of the traction company. Such as were reserved on behalf of the city of Decatur related to rulings of small consequence, and seem to have no merit. No brief has been filed for the city. Its joinder in the appeal appears to have been a pro forma proceeding. It results that the judgment as against the city must be affirmed. This result attained, we need not pass upon the motion to strike, for in any event appellees must be content with a judgment against the city alone. [2] Assuming that the totality of the work so done resulted in injury to appellees' prop-ciple of the entirety of judgments on appeal erty, our judgment is that this defendant is not liable therefor. Under the Constitution and statutes of this state the municipality had no authority to construct or improve its highway to the injury of abutting property without first making just compensation to the owner for the injury so done. No more could it authorize or compel the defendant so to do. We are not required to say what would have been defendant's responsibility if it had done the entire work of elevating the roadway of the street on the procurement or under the order and direction of the city council. As matter of fact it did nothing outside the line of its rails and 18 inches on either side. What it did had no effect upon the flow of water to either side, while the ele vation of its track left the roadway of the street for a space of approximately 25 feet on either side of its track as it had previously been, thus making it plain to every practical intent and purpose that it neither effected nor was party to any impairment of appellees' right of access. It should there fore have been acquitted. The trial court held to a different view, which it expressed in its rulings on evidence and in instructions to the jury, and its judgment against the traction company ought to be reversed. [3] As appears from the bond for supersedeas and the certificate of appeal this appeal was taken by the traction company alone. The judgment as against the traction company will be reversed, and the cause as to it remanded, in order that the trial court may dismiss with an order properly apportioning the costs in that court between the city of Decatur and the plaintiff. The costs on appeal will be taxed against the appellees. Affirmed in part and reversed and remanded in part. DOWDELL, C. J., and MCCLELLAN and SOMERVILLE, JJ., concur. (185 Ala. 206) SELLERS et al. v. DICKERT et al. Dec. 4, 1913.) (Supreme Court of Alabama. 1. EVIDENCE (§ 385*)-PAROL EVIDENCE AFFECTING WRITINGS-EXISTENCE OF WRITTEN INSTRUMENT. The doctrine that forbids parol evidence Cent. Dig. 88 1757, 1758; Dec. Dig. § 385.*] Summons was issued from the court below to the city of Decatur to appear in this court and join in the appeal if it should see proper, and it has appeared and has assigned errors, this by virtue of section 2884 of the Code of 1907 as amended by the act of April 21, 1911 (Acts, p. 589). Appellees have moved to strike the assignments of error made by the city for the assigned reason, in effect, that the city did not join in the appeal bond; the purpose and expectation being, we pre sume, that the judgment as against the city should stand in the event the judgment against the traction company should be reversed. The general rule is that joint judgments are to be treated as entireties on appeal, and a reversal on the appeal of one de-ing fendant will require a reversal as to both, the reason and policy of the rule being that, where the rights and obligations of the parties are necessarily blended in the judgment, [Ed. Note. For other cases, see Evidence, and are thus dependent one upon the other, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, though they be not strictly joint, the appel-2030-2047; Dec. Dig. § 441.*] late court will render such judgment as will 3. EVIDENCE (§ 460*) — PAROL EVIDENCE permit and require the entire controversy to be settled in one proceeding, in which the rights and liabilities of all parties may be considered and consistently determined. Elliott, App. Proc. §§ 574, 575. But here, as we PLICATION FROM WRITTEN INSTRUMENT. The implication is that an executed writcontains all stipulations, engagements, and promises the parties intend to make or to assume, and that all previous negotiations, conthe terms of the instrument. versations, and parol agreements are merged in IDENTIFYING CONTRACT. In an action on a duebill, payable as "pro vided by the terms of the original contract," parol evidence was admissible to identify the contract meant, though there was a prior written contract between the parties; such evi dence not having the effect of altering, varying, (2) The court erred in overruling objection or contradicting such prior written contract. of appellants to the following question asked by appellees of the witness L. M. Winn: "Now, state what was the trade that you made for Misses Dickert and Landt with the Drs. Sellers." [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.*] 4. EVIDENCE (§ 442*)-PAROL EVIDENCE AFFECTING WRITINGS - ESTABLISHING TERMS OF CONTRACT. Where the duebill sued on was payable as provided by "the original contract," parol evidence was admissible as to the terms of "the original contract," though there was a prior written contract between the parties, which the witnesses testified contained only a portion of "the original contract," as it could not be said, as a matter of law, that "the original contract" meant such written contract. (3) Overruling objection to question to same witness: "Well, state whether or not anything was said, Doctor, in this transaction, whether anything was said in this trade with Sellers, or whether it was agreed to by you and Dr. Moore, for the plaintiffs, that plaintiffs would wait for the $5,000 to be raised by the trustees before they could receive their $2,000, there or about the time of [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. § 442.*] 5. CONTRACTS (§ 176*)-CONSTRUCTION-QUES- making this contract." TIONS FOR JURY-IDENTITY OF CONTRACT. In an action on a duebill, payable as pro-ceive $2,000, to be paid by defendant, $1,000 (4) Answer of witness: "They were to revided by the "original contract,' the identity of the "original contract" was a question for the jury, though there was a prior written contract between the parties, which was claimed to be the contract meant. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 767-770, 917, 956, 979, 1041, 1097, 1825; Dec. Dig. § 176.*] 6. EVIDENCE (§ 471*)-OPINIONS-INTERPRETATION OF WRITTEN INSTRUMENT. In determining what was the "original contract" referred to in the duebill sued on, it was proper to ask the witnesses what "the terms of the original contract" were, without thereby offending the rule forbidding the interpretation of written instruments by other than the court itself. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 7. EVIDENCE (§ 471*)-OPINIONS-INTERPRETATION OF WRITTEN INSTRUMENT. In an action on a duebill, payable as provided by the "original contract," it was error to allow a witness to be asked to "interpret" the reference in the duebill, since it is the function of the court, and never the privilege of a witness, to interpret a writing in evidence. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 2149-2185; Dec. Dig. § 471.*] 8. EVIDENCE (§ 472*) — OPINION EVIDENCE CONCLUSIONS OF WITNESS. down, and $1,000 in 60 days. It was first agreed that they would pay whatever amount of indebtedness there was on the furniture as soon as it was moved." (5) Overruling objection to question to same witness: "Well, now, what was this you say then? Go on and state." lant's motion to exclude all the evidence of (9) The court erred in overruling appelalleged agreements between defendants and plaintiffs prior to March 18, 1912, as testified to by the witness Winn, to the effect that defendants agreed to buy the property of the Anniston Hospital, or of the plaintiffs, for $2,000, to be paid by defendants. (10) Overruling objection to question asked the witness Moore: "Go ahead and state the conversation you had." (11) In declining to exclude the answer to said question: "The conversation didn't amount to anything that night, except that Dr. Sellers said that I could have some influence with Dr. Winn, and that the two of us could manage the other hospital, that he and his brother could not trade with the girls, unless they could do it through us, and that was about all that was done that night. was over at the West End Drug Store on The next day was Sunday, and I Fifteenth street. E. M. Sellers stopped over to see me, and made the proposition that, if I could make the trade with the young ladies, he would give them $1,500, and give Winn and myself $250 apiece for making the trade, [Ed. Note.-For other cases, see Evidence, and I told him I would see Winn. I saw Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. Winn the next day, and we agreed to call 472.*] In an action on a duebill, payable as provided in the "original contract," it was error to admit testimony that it was given for the balance of the purchase price of certain property, since whether it was given therefor depended on the terms of the original contract, and, while the witness could testify what its terms were, he could not state his conclusion upon a question which was for the jury to decide. Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge. Assumpsit by Oma Dickert and another against E. M. Sellers and another. From a Judgment for plaintiffs, defendants appeal. Reversed and remanded. Most of the facts appear from the opinion. The several assignments of error grouped as A, under subdivision 3, refer to the following: Dr. Sellers and let it be $2,000 for the equipment of the Anniston Hospital to be paid to the young ladies, and not to pay us anythe consummation of the trade as if he had thing, and we would do just as much towards divided with us." (12) Overruling objection to question to same witness: "What trade did you finally consummate for them with reference to how much they should receive from the Sellers Bros. for their equipment, good will, established business, etc.?" (13) Refusal to exclude answer to same: | purpose of establishing out of these two prop"The final consummation was that the girls were to get $2,000; $1,000 when they moved, and another $1,000 in 60 days." (18) Overruling objection to question to same witness: "State what Dr. Sellers said on that occasion about the payment of the $2,000." (19) Failure to exclude answer: "He said he would pay $1,000 when they were moved, and another $1,000 in 60 days, or when he got the first payment of $5,000 from the trade with the city; and I asked him the question, 'Suppose you don't ever get the $5,000? and he said, 'Yes; but I know we will, and we will guarantee that we do, and that this will be paid.' (20) Question to same witness: "Was there anything said, Doctor, about plaintiffs being paid out of the $5,000, and having to be paid out of the $5,000 before they received anything?" (21) Failure to exclude the answer: "If there was anything, I didn't hear it." (22) Motion to exclude all of the testimony of the witness Moore as to an alleged prior verbal agreement or contract, prior to the execution of the contract in evidence, dated March 18, 1912. (32) Refusal to give charge 6: "The only contract you can consider in this case is that in writing dated March 18, 1912, between plaintiffs and defendants, and you cannot consider any verbal agreement alleged to be made prior thereto, or contemporaneous therewith, between the parties or their agents." (33) Refusal to give charge 7: "If plaintiffs and defendants agreed on a trade, and subsequently reduced their agreement to writing on March 18, 1912, then you can consider only the said written agreement in determining the contract between the parties." (35) Charge 9: "You should not consider any alleged verbal agreement in the case prior to the written agreement dated March 18, 1912, between plaintiffs and defendants, nor any alleged verbal agreement made at the time said written agreement was made." The question set out in assignment of error 26 is as follows: To the witness Moore: "I will ask you whether or not you mean to say, by the words 'due by the terms of the original contract,' due by the terms of the verbal contract, what was the original contract;" and the answer: "$1,000 down, and $1,000 in 60 days." erties, and equipments, and institutions a public hospital in Arniston, Misses Dickert and Landt constituted Drs. Winn and Moore their agents to negotiate with the Drs. Sellers, and also bind them in the premises. On March 18, 1912, the Drs. Sellers and Misses Dickert and Landt (through the hand of one of their agents) signed the instrument of which the following is the substance: "Know all men by these presents that this contract is hereby made by and between M. O. Dickert and O. V. Landt, doing business as the Anniston Hospital Company, party of the first part, and E. M. Sellers and W. D. Sellers, party of the second part, and it is mutually agreed and understood as follows: That, in consideration of the mutual agreement of the parties hereto, the parties of the first part contract and agree to sell and convey to the said parties of the second part the equipment, and outfit, and all property connected therewith, not including the real estate in which the same is located, of the said Anniston Hospital Company in consideration of the sum of one ($1.00) dollar to be paid by the said parties of the second part to the parties of the first part; and the parties of the second part contract and agree, upon receipt of the said conveyance of the equipment of the Anniston Hospital Company, to sell and convey by good and sufficient deeds, with covenants of warranty, the property known as the Sellers Hospital, and all equipment connected therewith, and also the property which shall have been conveyed to the parties of the second part by said Dickert and Landt, and which is above referred to, to certain named trustees to be agreed upon for the benefit of the public, at and for the consideration to be paid to the parties of the second part of the sum of twenty-five thousand ($25,000.00) dollars, said payment to be made as follows: The sum of five thousand ($5,000.00) dollars in sixty days, and the balance of said purchase money in five annual installments of four thousand ($4,000.00) dollars each, with interest on each note payable annually at eight per cent. per annum." On March 30, 1912, the Drs. Sellers executted the instrument, called a duebill in the record, in words and figures as follows: "Due Drs. Moore and L. M. Winn $1,000 in 60 days, provided by the terms of the original contract." This is the foundation of the present suit; common counts and counts in special assumpsit being employed in the statement of the cause of action. While mere mention is made in brief for appellant that the court erred, as assigned, in overruling the demurWil-rer to count 2 as amended, no insistence upon Rutherford Lapsley and James F. Matthews, both of Anniston, for appellants. lett & Willett, of Anniston, for appellees. MCCLELLAN, J. Prior to March 18, 1912, Misses Dickert and Landt (appellees) owned and operated the Anniston Hospital, and Drs. E. M. and W. D. Sellers (appellants) owned this assignment appears in the brief for appellant. There is no assignment of error insisted upon that is predicated of rulings on the pleadings. The major question presented for review is the propriety of the trial court's action in [3] The basis for this action-the bill of sale quoted before was executed 12 days after March 18, 1912, and at least that number of days after the parol agreements to which the witnesses were allowed to testify. In effect the first clause of the duebill said: "I owe Doctors Moore and Winn one thousand dollars, to be paid in sixty days from March 30, 1912." To this there is added, "provided by the terms of the original contract." Manifestly, the express reference there made to an "original contract" required parol evidence to identify the subject of the reference. The duebill did not describe the "original contract," either by date or other expressly identifying method. If it had definitely referred to the instrument of March 18, 1912, then there would be presented the unalloyed question to which counsel have devoted an able and elaborate discussion. The paper not having done so, it is clear that parol evidence was properly receivable to identify the "original contract." But evidence to identify a contract referred to in another paper and evidence to alter, vary, or contradict, if so, a written contract referred to in another paper, which has been identified, are, of course, very different mattersmatters not to be confounded when due regard for established rules of evidence is required. obligations assumed or promises made outside | gagements, and promises the parties intend of the instrument of March 18, 1912, quoted to make or to assume, and that all previous above. The real issue between parties may negotiations, conversations, and parol agreebe made to more clearly appear by stating, ments are merged in the terms of the instrusummarily, the respective concrete conten- ment. tions: For the plaintiffs, that defendants engaged to pay plaintiffs, in any event, $2,000 for their unqualified contribution, in property, to the unit made by the aggregation of both the hospital properties, which, it was the expectation and purpose, would, in effect, be sold to the public, represented by trustees, and paid for, to the defendants as the temporary repositories of the title, by popular subscription, and that $1,000 was paid by defendants, and the other $1,000 was represented by the duebill, made payable to the mentioned agents of the plaintiffs, who were without pecuniary interest therein; and, for the defendants, that there was no assumption by them of an absolute obligation to pay plaintiffs $2,000, but only to pay them that sum if the sum to be raised in a definite time by popular subscription was paid to the defendants a condition that was not met-the scheme being to sell the combined property to trustees for the public for $25,000, $2,000 of which should go to the plaintiffs for their property contribution, and the rest to defendants, and that the duebill was but a token of the balance ($1,000 having already been paid by defendants), to pay which the assurance was wholly contingent upon the event stated. It is thus seen that the paramount substantial issue was whether the defendants engaged unqualifiedly to pay $2,000 to plaintiffs for their hospital property. If the defendants' theory of the matter was sustained, of course the plaintiffs could not recover; but, if that of the plaintiffs prevailed, the liability of defendants was established. In the process of supporting their theory the court allow the plaintiffs, over the defendants' objections, to introduce parol evidence dehors the writing of March 18, 1912. This testimony was to the effect that a contract consistent with the plaintiffs' theory, stated before, was made, and that the duebill was an accordant element thereof-a contract not fully set forth in the writing of March 18, 1912. The basis of the objections made for defendants was the familiar doctrine which forbids the adduction of parol evidence to vary, alter, or contradict a written contract; and it is earnestly insisted for appellants that the matters of evidence admitted for plaintiffs do not fall within any of the recognized "exceptions" to the general doctrine mentioned. Counsel say, in substance in this connection, that the application of the law, and not the law, is the real subject of their controversy. [1, 2] The general doctrine invoked for appellants necessarily rests upon the existence of a valid written instrument expressing the obligations assumed by or imposed upon the parties. The implication, at least, is that the [4, 5] Under this duebill, a vitally important inquiry of fact was, What were the "terms of the original contract"? There was no possible way in which to establish the fact other than by evidence aliunde the duebill. The instrument of March 18, 1912, itself did not establish the fact, though it was undoubtedly evidence tending so to do when parol evidence was presented to evidentially refer the terms of the duebill to that instrument. The defendants, in effect, affirm that the reference in the duebill was to the instrument of March 18, 1912, and to nothing else; but the plaintiffs contested that affirmation, and asserted through their testimony that that instrument was not alone the "original contract"-that the "original contract" had another feature which supported the liability the duebill evidenced. Hence, before the doctrine appellants would invoke could have operation and effect, it would be necessary to affirm, as a matter of law, that the written instrument was the "original contract" referred to in the duebill. Obviously, this could not be done by the trial court without deciding an issue which was necessarily a question for the jury. [6] In determining what was the "original contract," those advantaged to know the facts were the sources of information in the premises, and it was competent to ask them alent phrases, what were "the terms of the original contract," and thereby offend no rule forbidding the interpretation or construction of written instruments by other than the court itself. Such questions evoke knowledge of a fact or a combination of facts comprehended in the term "contract." The several assignments of error grouped as A under subdivision 3 of appellants' brief are without merit. originally brought by such owner for the use of the insurance company. Cent. Dig. 88 160-166; Dec. Dig. § 95.*] [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 190-193; Dec. Dig. § 90.*] 3. NEGLIGENCE (§ 83*)-CONCURRING NEGLIPROXIMATE CAUSE SUBSEQUENT NEGLIGENCE. GENCE [7] There was manifest error in allowing, over defendants' apt objection, the question, copied in assignment 23, propounded to the witness Dr. Moore whereby the witness was The rule that where defendant, whose negasked to interpret the reference in the due- ligence, subsequent to that of plaintiff, causes bill. It is ever the function of the court, and an injury, relies on plaintiff's concurring negnever the privilege of a witness, to construe ligence, he must show that plaintiff was conscious of his danger and continued in his neglior interpret a writing in evidence. The mogence until it was too late for defendant to tion to exclude the answer to this question avoid injury is not applicable, where the negwas also erroneously overruled. The ques-ligence of the person injured and that of detion set out in assignment 26 was subject to like fault, and it was error to allow it over defendants' objection. [8] There was error, also, in permitting the witness Winn to testify that the duebill was given for the balance of the purchase money. Whether it was given therefor or not depended upon what "the terms of the original contract" were. It was competent for the witness to testify what those terms were what the original contract was-but for the jury to determine the issue what the "original contract" was. To allow the witness to testify to the effect indicated was to permit him to affirm that which, under the evidence, only the jury could decide. For the errors indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded. MAYFIELD, SAYRE, and SOMERVILLE, JJ., concur. (184 Ala. 601) fendant continue to be concurrent up to the very time of the injury. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. § 83.*] 4. STREET RAILROADS (§ 110*) INJURY TO AUTOMOBILE-PLEADING-SUBSEQUENT NEG LIGENCE. In an action for injuries to an automobile in collision with one of defendant's street cars, defendant alleged that the driver of the machine was negligent in that, with knowledge it was likely or probable that the automobile that the street car was approaching, and that could not get out of the way, he nevertheless negligently continued to drive at a high speed in the direction of the car, and as a result a collision occurred, causing the damage complained of. Held, that such plea was good as a plea of plaintiff's continuing negligence, and was a complete answer to counts of the complaint setting up defendant's subsequent negli gence as a ground of recovery. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 224; Dec. Dig. § 110.*] Appeal from Birmingham City Court; John H. Miller, Judge. Action by the Etna Accident & Liability Company against the Birmingham Railway, Light & Power Company, for damages BIRMINGHAM RY., LIGHT & POWER CO. to an automobile. Judgment for plaintiff, ▼. ÆTNA ACCIDENT & LIA- (Supreme Court of Alabama. Nov. 18, 1913. 1. PARTIES (§ 95*)-NOMINAL PARTY-JOINDER BY AMENDMENT. and defendant appeals. Reversed and remanded. The complaint originally was in the name of the Etna Accident & Liability Company, a corporation, and alleges that the Corey Highland Land Company owned an autoCode 1907, 2490, provides that in all mobile which was insured by plaintiff, and, cases where suits are brought in the name of while operating it along the streets of Birthe person having the legal right for the use of another, the beneficiary must be considered mingham, it was negligently run into or as the sole party on the record, and section against a street car of the defendant com3667 provides that when judgment is rendered pany, and badly broken and injured. The against the plaintiff in any suit, brought in the name of a nominal plaintiff for the use of an- complaint further alleges that the land comother, judgment for costs must be rendered pany proved its loss in the sum amounting against the beneficiary, or his personal repre- to $1,500, which was paid to it by the plainsentative. Held, that where an insurance com- tiff, which it was compelled to do under pany, having paid a claim for injuries to an automobile in collision with a street car, brought its policy, and that subsequently thereto, suit against the street car company in its own but previous to the institution of this suit, name, it had an absolute right to amend the the said land company assigned to this complaint by adding the name of the owner of the machine as a nominal plaintiff, and to pro- plaintiff such right of action as accrued ceed with the case as if the suit had been to it by reason of the aforesaid negligence, |