[7] (b) The contention of appellee that the judgment should have been for three-fifths of one-half of the judgment of Lewis and appellant against Green county, instead of three-fifths of one-third of it, is not tenable. The original contract, and the only one under which appellee could make any claim, entitled the firm of Bacon & Macpherson to only one-third of the contingent fee earned. The fact that, after the death of Bacon, Towles by an arrangement with the fiscal court was released from any further obligation under the contract to continue the defense of the county, and then transferred or assigned his interest under the contract to the appellant and John W. Lewis, would not increase the rights of appellee, as the representative of Bacon, to an additional amount of the fee, because the assignment of Towles was not to the firm of Bacon & Macpherson, but to Macpherson and Lewis. tion, his authority ends with the final judg-, pellant had acted as one of the attorneys, ment in the case, and that he has no au- and had been accepted by the county in lieu thority to take an appeal from the judgment of the firm of Bacon & Macpherson, and without further employment or direction that his services had been rendered under from his client. The appellant claims that in the contract, and no mention was made of the Quinlan case a re-employment of him any other employment which he had touchalone was made by the fiscal court, and that ing Green county. the same was done in the Shortell case by the county judge, individually, and not as a While in the latter instance the parol direction of the county judge could not be considered as making a new contract, neither the direction of the county judge, according to its terms, nor the order of the fiscal court in the matter of the writ of certiorari in the Quinlan case amounted to a reemployment of appellant under a new contract, but amounted to a consent to proceed under the contract under which appellant had been rendering services. While the rule stated in the cases supra doubtless applies to a contract with an attorney to simply prosecute to judgment or to defend an action in a court of original jurisdiction to its judgment, but, if the contract in the first instance authorizes the prosecution of an appeal, the rule in the cases, supra, would not apply. Considering the circumstances surrounding the parties and the object which the parties had in view in making the contract of November 15, 1894, and these circumstances may be considered (Mitchell v. Southern Ry. Co., 124 Ky. 146, 74 S. W. 216, 24 Ky. Law Rep. 2388) as well as the language employed in the contract, it appears that the parties when making the contract did not contemplate that a final test of the subject of the litigation which would be sufficient to determine the lability of the county upon the bonds could be had by anything short of an appeal to 'a court of final jurisdiction, and hence the contract itself was sufficient to authorize the attorneys, so far as a contract for their services was concerned, to prosecute an appeal from the circuit court to this court in the Shortell case, or to apply for a writ of certiorari in the Quinlan case. The judgment is therefore affirmed upon the original and cross-appeals. (180 Ky. 755) TURNER et al. v. BOWENS. (Court of Appeals of Kentucky. May 28, 1918.) 1. QUIETING TITLE 10(2)-SUFFICIENCY OF TITLE "LEGAL TITLE." Ky. St. § 11, requiring that plaintiff in suit does not require perfect paper title, but only to quiet title have legal title and possession, such title as gives the right to possession, and, if adjoining owners agree upon a line, each has title to such line, sufficient to maintain the suit. and Phrases, First and Second Series, Legal 2. QUIETING TITLE 12(7)-SUFFICIENCY OF Ky. St. § 11, requiring that plaintiff in suit to quiet title have legal title and possession, does not require actual physical possession, but it is sufficient if he has actual possession of a tract of which the land involved is a part. and Phrases, First and Second Series, Posses[Ed. Note.-For other definitions, see Words sion.] 3. BOUNDARIES 46(1) AGREEMENT-VALIDITY CONSIDERATION. A sufficient answer, it seems, to all of the foregoing grounds of reversal, is that in the petition filed by appellant and John W. Lewis against Green county for the recovery of the judgment for the fees in controversy, the contract of Bacon & Macpherson with the Green fiscal and county courts on November 15, 1894, was fully set out, and it was specially alleged that the services rendered by them in the Quinlan and Shortell cases, as well as all other services rendered by them in representing the county in the litigation about the county bonds, was under and by virtue of the contract, and that they were Where adjoining landowners settle bona fide entitled to the contingent fee provided for dispute as to boundary by agreeing on line, it in the contract, and upon this basis and no is not necessary that they should acquiesce other recovered the judgment. It was also therein for 15 years, but the agreed line becomes fixed, when followed by some possession alleged that Bacon had died, but that ap-indicating acceptance of the agreed line. Parol agreement between adjoining landowners, settling boundary as to which there is a bona fide dispute, although one holds by deed calling for the other's line, will be deemed to rest on sufficient consideration, and the agreed line takes the place of the original line. 4. BOUNDARIES 46(1) AGREEMENT-VA LIDITY. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Letcher Bowens denied all of the material averCounty. ments of the petition. Thereafter the case Action by David Turner and others against was prepared for trial, and on a hearing of Jesse Bowens. From the decree rendered, the suit of the Nieces, to which Turner and plaintiffs appeal. Reversed, with directions. the Hamilton Realty Company had become J. M. Cook and F. G. Fields, both of parties as the vendees of the Nieces, the peWhitesburg, for appellants. Jas. H. New-tition was dismissed. man and R. Monroe Fields, both of Whitesburg, for appellee. CARROLL, J. This is a controversy about the ownership of a small tract of land claimed by the Nieces, who were vendors of Turner, the appellant, on the one side, and Bowens, the appellee, on the other. In 1867 there was conveyed to Bowens a tract of land in Letcher county, "beginning at the mouth of a small drain, a short distance below the lower end of the Owing Colly field; thence running up the Camp branch to the upper end of the Ewings field," and thence with different general courses to the beginning, containing 200 acres more or less. In 1895 there was conveyed to the Nieces a tract of land, and the description thereof called for Bowens' line, and ran a part of the way with this line on the call mentioned. About 1902 the Nieces and Bowens got into a controversy as to the dividing line between their respective tracts of land at the point where the Niece deed called for the Bowens line, and, according to the contention of the Nieces, this dispute was settled by the making of an agreed line between their lands along the points in dispute, which agreed line was thereupon marked, and thereafter recognized by both of them. After this the Nieces sold the land up to the agreed line to Turner, and Turner sold the mineral rights to the Hamilton Realty Company. After this sale of the mineral rights, which took place about 1912, a controversy came up as to the line between the lands of Bowens and the lands conveyed to the Nieces; Bowens insisting that the line should be located as designated in the deed he got in 1867, while the Nieces, and those claiming under them, contended that the agreed line was the line between their lands. As a rewas the line between their lands. As a result of this controversy the Nieces filed a suit against Bowens in 1914, and in the petition, as amended, it was set up that more than 12 years before the institution of the suit the Nieces and Bowens had a dispute as to the location of the line between their lands, and to settle this dispute they agreed on the establishment of a line, and the line so agreed upon had been marked, and recognized as the line by both of them for several years before this suit was brought, and each had been in the possession of the land on his side of this agreed line. They further averred that Bowens was setting up claim to the land on their side of the agreed line, and giving it out in speeches that he was the owner of the land, and they asked that their As the deed of the Nieces was made after the deed to Bowens, and called for his line, the dispute originally arose as to the location of Bowens' line, because, wherever his line was, there also was the line of the Nieces. It appears that Bowens' deed called for the mouth of a small drain, and the dispute as to the location of his line grew out of the fact that Bowens claimed that this small drain was at one place, while the Nieces claimed it was at another place, and the correct line depended upon which one of these drains was the one called for in the Bowens deed. The weight of the evidence clearly shows, as we think, that this dispute was settled about 1902 by the location of an agreed and marked line at the point now claimed by the Nieces as their line. fact, all of the evidence in the case shows that there was a dispute, and that this dispute was settled by the making of an agreed line; and it further appears that after this agreed line was established Bowens erected a fence on the line, thus showing that he recognized the agreed line as the correct line, and it further appears that, after this, both parties claimed to this line. It further appears that Bowens did not question the correctness of this agreed line until several years after it had been located, and not until the Nieces or Turner, or perhaps both of them, sold the mineral in the land to the them, sold the mineral in the land to the Hamilton Realty Company. In [1] It is insisted by counsel for Bowens that the lower court correctly dismissed the petition, because it was an action to quiet the title, and such an action, under section 11 of unless the party bringing the suit has "both the Kentucky Statutes, cannot be maintained the legal title and possession" of the land to which he seeks to quiet the title. This argument is put up on the ground that it does not appear that the Nieces or Turner have the legal title to this land in dispute, or that they had ever been in the actual possession of it. It is true that, in an action under this statute to quiet title, the plaintiff must have both title and possession; but this does not mean that he must have a paper title to the land. It only means that he must be claiming the land under such a title as would give him the right to the possession of it, and this character of title may rest on adverse possession, or on a sufficient parol agreement by which the party claiming the land has the right to its possession. For example, under the facts in this case, the establishment of this agreed line to settle the dispute between them as to the correct loca the Nieces with such title to the land up to, of an agreed line between them, this parol this line as would enable them to bring a suit to quiet the title to the same extent as if they had a paper title to it. Le Moyne v. Hays, 145 Ky. 415, 140 S. W. 552; Rice v. Blair, 161 Ky. 280, 170 S. W. 657. agreement will be deemed to rest on a sufficient consideration, and the agreed line will take the place of the original line. Warden v. Addington, 131 Ky. 296, 115 S. W. 241. [4] Nor is it necessary, in all cases where an agreed line is established, that the parties should acquiesce in the line for 15 years before their right to rely on it as the real line becomes fixed, so as to give to each a claim of title to it. Thus it was said in Garvin v. Threlkeld, 173 Ky. 262, 190 S. W. 1092: [2] Nor does the statute mean that the party who brings a suit to quiet his title must be in actual physical possession of the particular piece of land to which he wants his title quieted. It is true that he must be in the actual possession of the land, but if he -as were the Nieces-is in actual physical "While the validity of parol agreements to possession of another body of land, of which settle disputed boundaries was long resisted on the land to which he wishes to have the ti- the ground that, in effect, they passed the title to real property without the solemnities requirtle quieted is a part, then he will be in posed by the statute, it is now settled that, where session of it within the meaning of the stat- the dividing line is uncertain, and there is a ute. To illustrate: In this case, when this bona fide dispute as to its location, and the agreed line was established, it took the place parties agree on the dividing line, and execute the agreement by marking the line or of the original line between the lands of building a fence thereon, such an agreement is the Nieces and Bowens, and placed the Niec- not prohibited by the statute of frauds, nor is es in the possession of the land as fixed by it within the meaning of the provisions of the law that regulate the manner of conveying real the agreed line as effectively as they were estate. The reason for the rule is that the parin possession up to the original line before ties do not undertake to acquire and to pass the agreed line was located, and the land the title to real estate, as must be done by writthat the Nieces got when the agreed line was agreement fix and determine the situation and ten contract or conveyance. They simply by established became, and continued to be, a location of the thing that they already own; part of the tract of which they had always the purpose being simply by something agreed been in actual physical possession. It is well on to identify their several holdings and to make settled that, when a party is in the actual certain that which they regarded as uncertain. **While it is true that in a number of physical possession of any part of a body of cases, where the executed agreement fixing the land to which he has good title, whether it dividing line was followed by acquiescence of be acquired by regular conveyances, or by for the statutory period of 15 years, this fact each of the parties, or their adverse possession adverse possession, or by the location of was adverted to in the opinion as an element of agreed line, he is in the possession of the considerable weight. * **We have never whole of it, and may bring a suit to quiet the held that, where the agreement was actually executed by the parties, it was not valid, if not title to any part of it. acquiesced in or followed by adverse possession for a period of 15 years. On the contrary, we distinctly held in the case of Frazier v. Mineral Law Rep. 815], that an oral agreement fixing Development Company, 86 S. W. 983 [27 Ky. the boundary lines may be enforced in equity, if the parties have recognized the line and treatthat it had been so recognized for fifteen years. ed it as the true division, without a showing Indeed, the great weight of authority is to the effect that the agreement, when followed by possession with reference to the boundary so fixed, will be conclusive on the parties, although the possession may not have been for the full statutory period." [3] The other argument is that, where the junior title calls for and with the lines of the senior title, any agreement by which the party claiming under the senior title gives up a part of his land is without consideration and void. Stated in these terms, the argument is sound; but there is a well-recognized principle that, where there is a bona fide dispute between two adjoining landowners as to the location of the line between their lands, although one of them may have the senior and the other the junior title, and although the lines of the junior title may call for the lines of the senior title, and this dispute is settled by the establishment, in parol, * For the reasons indicated, the judgment is reversed, with directions to enter a judgment giving the Nieces and Turner the relief prayed for. (140 Tenn. 107) LAMB. (Supreme Court of Tennessee. May 18, 1918.) 1. MASTER AND SERVANT 302(2)-INJURY TO THIRD PERSON-EVIDENCE. No question is made upon the amount of the verdict. The sole question for our consideration is whether plaintiff has proven his case in such a degree of certainty as to have it decided by the jury. To entitle plaintiff to recover, it was necessary to show that the boy who collided with him was not only in the employ of defendant tele-crossing. graph company, but was acting within the scope of his employment as one of its messenger boys at the time, since conjecture cannot take the place of proof essential to plaintiff's claim. 2. MASTER AND SERVANT 330(3) - RELATION AND SCOPE OF EMPLOYMENT-PROOF. Like other controverted facts, both the servant's employment and its scope can be proven by circumstances. 3. TRIAL 142, 143-QUESTIONS FOR JURY. If the evidence is conflicting on material points, or diverse inferences as to material matters can be drawn from evidence not conflicting, the case is for the jury. 4. TRIAL 139(1)-SUBMISSION OF CASEEVIDENCE. In determining whether evidence warrants submission of case to jury, the evidence must be looked to as a whole, and all reasonable inferences drawn from it favorable to plaintiff. 5. EVIDENCE 75 — FAILURE TO OFFER REBUTTAL TESTIMONY-PRESUMPTION. Where the evidence tends to fix liability on defendant, and he has it in his power to offer evidence to rebut the unfavorable inferences which the proof tends to establish, and neglects or refuses to offer such proof, it may be inferred that the fully developed evidence would establish liability upon his part. 6. MASTER AND SERVANT 332(2)-INJURY TO THIRD PERSON-PRIMA FACIE CASE. In an action for injuries sustained by plaintiff in a collision with one of defendant telegraph company's messenger boys, riding a bicycle, whether the boy was within the scope of his employment at the time of the accident held for the jury. 7. MASTER AND SERVANT 330(1) — ACTION FOR INJURIES - SHIFTING OF BURDEN OF PROOF. When plaintiff showed by evidence circumstances from which reasonable inferences could be drawn establishing the negligence of defendant telegraph company through its servant, and the further fact that the servant was acting within the scope of his employment at the time he committed the act from which the injury resulted, the burden shifted to defendant to exonerate itself, if it could. Certiorari to Court of Civil Appeals. Suit by T. Avery Lamb against the Western Union Telegraph Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant petitions for certiorari. Writ denied. Hunter Wilson, of Jackson, for appellant. G. T. Fitzhugh, of Memphis, for appellee. Plaintiff was walking on the east side of Main street in the city of Memphis, and was about crossing Monroe street at the regular crossing. He had just stepped off the sidewalk along Main street, and had taken two or three steps going south, and reached a point six or seven feet from the north curbing of Monroe street, within the limits of the Main Street sidewalk, if extended, when he was run into by a boy upon a bicycle and seriously injured. Plaintiff avers that this boy was in the employ of the defendant and was in his line of duty at the time of the injury. The negligence of the boy in running against plaintiff is not denied. The plaintiff testified that the boy that collided with him was riding a bicycle, and wore a cap upon his head with the words "Western Union" upon it, and also a number. It was shown by another witness who saw the accident that the boy had on a Western Union cap and a Western Union uniform. It was also shown that the custom of defendant in the city of Memphis was to have its messenger boys wear caps and uniforms of a distinguishing color and with the words "Western Union Messenger Service" printed on the cap. The office of defendant was located on the southeast corner of Monroe street, and the boy that collided with plaintiff passed directly from the point of collision to the side entrance of this office. He parked his bicycle at a place in the side street where the messenger boys of the defendant usually kept their bicycles while not in use. He was seen in and about the office of defendant, wearing its cap and uniform, for more than a year before the accident and for several months after the accident. The traffic policeman at the corner of Main and Monroe knew him well by sight, and says that he frequently saw this boy going in and out of the defendant's office with his cap, uniform, and bicycle, carrying a pad provided by the defendant for its messenger boys while receiving and delivering messages. defendant's messenger boys customarily travel on bicycles in delivering and receiving Other boys messages for its customers. passed in and out of the offices of the defendant, delivering and receiving messages, with similar uniforms and with bicycles. The LANSDEN, J. This suit was brought by plaintiff below against the defendant to re- [1-4] It is well settled in this state that cover damages for personal injuries. The conjecture cannot take the place of proof in trial resulted in verdict and judgment in making out plaintiff's claim of liability plaintiff's favor for the sum of $16,000. against the defendant. It is necessary for From this judgment there was an appeal to the plaintiff to show, in order to enable him the Court of Civil Appeals, in which court to recover, that the boy who collided with the judgment was affirmed. The case is be- him was not only in the employ of the defore us upon petition for writs of certiorari. fendant, but was acting within the scope of The proof by plaintiff of the foregoing facts made a prima facie case of liability. If the truth was not with the inference which was drawn by the jury from these facts, it lay within the power of defendant to explain fully what the truth was, and to show its exact connection with the accident. If it were true that the boy was not within the scope of his duty at the time, or that he was not in its employment, this could have been shown beyond reasonable doubt, and defendant could have been fully exonerated. Standard Oil Co. v. State, supra; Fisher v. Insurance Co., supra. his employment as one of its messenger boys, | returning from delivering a message, or was at the time. Goodman v. Wilson, 129 Tenn. in the performance of some other duty. 464, 166 S. W. 752, 51 L. R. A. (N. S.) 1116. But this does not mean that plaintiff must adduce direct evidence of these facts. Like all other controverted questions of fact, both the employment and its scope can be proven by circumstances. 1 Mechem on Agency, $261. And if the evidence is conflicting on material points, or diverse inferences as to material matters can be drawn from the evidence not conflicting, the question cannot be decided by the court, but must go to the jury. King v. Cox, 126 Tenn. 553, 151 S. W. 58. Likewise the evidence must be looked to as a whole, and all reasonable inferences drawn from it favorable to plaintiff. King v. Cox, supra; Railroad v. House, 96 Tenn. 552, 35 S. W. 561; T. C. Ry. Co. v. Morgan, 132 Tenn. 1, 175 S. W. 1148. [5] Another rule of evidence, which is often resorted to to explain incomplete knowledge, is that where the evidence tends to fix liability on the defendant, and if he has it in his power to offer evidence to rebut the unfavorable inferences which the proof tends to establish, and neglects or refuses to offer such proof, it may be inferred from the facts shown that the fully developed evidence would establish liability upon his part. Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L. R. A. (N. S.) 1015; Fisher v. Insurance Co., 124 Tenn. 483, 138 S. W. 316, Ann. Cas. 1912D, 1246, Ann. Cas. 1913A, 203. [6] We think that the facts recited in this opinion make a prima facie case of negligence. It is a reasonable explanation of the conduct of the messenger boy in going directly to the office of the defendant, and parking his bicycle at the usual place, used for such purposes, that he had been on an errand for the company; and there is no other reasonable explanation of his wearing the livery of defendant in and about defendant's office for so long a period as 12 months than the fact that the boy was in the service of defendant. It is established from these circumstances almost beyond reasonable doubt that this boy was in the employ of defendant for the purpose of receiving and delivering messages. From the added fact of the boy passing immediately from the scene of the accident to the offices of defendant, the jury were warranted in inferring that the boy was on the business of his employer. At all events, we cannot say as a matter of law that he was not so engaged. It is urged upon us that the facts that the accident occurred about 1:30 p. m., and that the boy did not have a pad at the time, show that he was returning from lunch. These facts may tend to indicate that such was the case, but certainly it cannot be said that they conclusively demonstrate it. They are open to the inference that the boy was [7] Nor do we think the duty was upon plaintiff to furnish this full explanation for defendant. Defendant's learned counsel insists that plaintiff should have introduced the superintendent of defendant, or some other witness under defendant's control, and have shown the exact connection defendant had with the accident. We think the plaintiff was under no such duty. When he showed by evidence circumstances from which reasonable inferences could be drawn establishing the negligence of defendant through its servant and the further fact that the servant was acting within the scope of his employment at the time he committed the act from which the injury resulted, the burden then shifted to defendant to exonerate itself, if it could. These statements are so elementary that citation of authorities is not needed to sustain them, but we believe that the cases cited above fully justify the conclusions drawn. Writ denied. WILLIAMS, J. There is involved in this cause the construction of the will of J. C. Wright; the chief complainant being his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |