Columbiana Common Pleas.

plaintiff and Wilkinson would be fellow-servants, and the defendant would not be liable to the plaintiff for the injury occasioned to him by the negligence of the fellow-servant. I say to you that Wilkinson must have had some authority, some control, over the defendant. It is imma terial by what manner he was commissioned with such authority if he in fact did have it. It is unnecessary that there should have been any express direction or instruction from some one in authority in order to constitute the man Wilkinson the representative of the defendant.

It would be sufficient if the manager or the vice-president, or some one who is conceded to be the authorized representative of the defendant, recognized Wilkinson as having authority and acquiesced in his management and control of the plaintiff, and regarded him as being in control of the plaintiff, and having authority to direct the plaintiff.

Now if Wilkinson did not represent the defendant, did not have control over the plaintiff, did not have authority to direct him in his employment, then the plaintiff and Wilkinson would be fellow-servants, and the plaintiff could not recover, notwithstanding the injury may have been caused by the negligence of Wilkinson, and in that event your verdict should be for the defendant.

But if you find on this proposition in favor of the plaintiff; that is, if you find that the defendant was guilty of negligence under the instructions which I have given you, and that such negligence caused the injury to the plaintiff then you will look to the testimony to see, whether or not the plaintiff was free from negligence.

The law imposes upon the plaintiff the duty to exercise care for his own safety, for if the plaintiff himself was guilty of negligence, which in any way contributed toward the injury; that is, assisted in the bringing it about, the plaintiff cannot recover, unless Wilkinson, after he became aware, or ought to have become aware of the plaintiff's danger, failed to use ordinary care to avoid injuring the plaintiff. If, as the defendant claims, the plaintiff did not use the devices for his safety which the defendant claims had been provided for that purpose; that is, if the plaintiff did not use the strap or rope, if you find there was a strap or rope there for the purpose of guarding the lever, such omission on the nart of the plaintiff would not be such negligence on his part as would prevent his recovery provided you find that the defendant was guilty of negligence, and provided further that you find that Wilkinson in the exercise of such care as a reasonable man would ordinarily exercise under such circumstances, might have seen and known that the plaintiff was upon this cylinder engaged in the discharging of it at the time he started the cylinder, if he did start it.

In order to recover in this action, as I have already said, it devolves upon the plaintiff to show, by a preponderance of the evidence, that the defendant was negligent in the respects complained of, to which I have

Connors v. Golding & Sons Company.

called your attention, and he must further show that the negligence complained of was the sole cause of his injury, and that it was not caused in part by the negligence of the plaintiff himself. I desire to call your attention to the fact that I have said that the negligence must be the negligence complained of in the petition. It is immaterial whether or not the defendant was negligent in other respects.

In order to recover in this action, it must appear that the defendant was negligent in the respects of which the plaintiff complains in his petition. Unless the plaintiff has established each and all of these propositions to which I have called your attention, your verdict should be for the defendant. But if you find that the plaintiff has established all these propositions to which I have called your attention as being essential to the right to recover, your verdict should be for the plaintiff; and it will then be necessary for you to consider and determine the amount of damages the plaintiff should recover, by your verdict; and if you find he is entitled to recover, you should allow him such sum as will fairly recompense him for the injury which he has received, and this would include the loss of time, taking into consideration what the testimony may show as to the value of his services, and the value of his time, also take into consideration his physician's fees. Whatever sum he has expended, if any, or whatever debt he has properly incurred in order to effect a cure, should be considered and whatever amount is reasonable for that should be allowed. Also any necessary expenses incurred in the way of nursing in order to properly care for his injuries; and you should also look to see what, if any, physical suffering or pain he may have sustained and endured by reason of such injury. Take all these into consideration, and make such fair allowance for them as in your judgment you may think right and proper. The amount should be reasonable.

You should look to the evidence and see whether or not the injuries which he may have sustained as likely to be permanent or not, and, if permanent, make such allowance as is right and proper under all the circumstances, taking into account what the evidence may show as to his probable earnings, if anything, and allow him as much as in your judgment will be right and proper, and thus fairly and reasonably compensate him for the injury he has sustained.

When you retire to your room, you will appoint one of your number foreman, and, when you have agreed upon a verdict, you will reduce it to writing, and have your foreman sign it as foreman, and then return into court with it.

You may now retire.

The defendant, at the time, excepted to the court's charge to the jury, as follows:

Columbiana Common Pleas.

I. To that part of the charge relating to the authority which Wilkinson had which constituted him the agent of the defendant so as to bind the defendant by his acts.

2. As to contributory negligence on the part of the plaintiff, especially where it relates to the use of the devices for his safety.

3. To the part of the charge relating to the fact, that even though the plaintiff did contribute to his injury by his own negligence in not using these devices, if the defendant was also negligent through the man Wilkinson, plaintiff could recover.

Whereupon the jury retired for deliberation, and returned a verdict. for the plaintiff.

DEEDS-DURESS.

[Cuyahoga Common Pleas, April Term, 1888.]

*MINNIE E. WHEELOCK V. COMMERCIAL. NATIONAL BANK.

1. CONTRACTS BASED UPON ILLEGAL TRANSACTIONS.

Where a contract based upon an illegal transaction has been executed the court will not rescind it nor give relief against its terms; and where it is executory it will not enforce it.

2. PARI DELICTO-POSITION UNEQUAL.

Where the condition or position of two contracting parties is glaringly unequal, and the mind of one is overborne by the other, they are not on an equality of guilt, and the rule of pari delicto will not apply.

3. CONTRACT FOR SUPPRESSION OF CRIMINAL PROCEEDING.

A contract based upon suppression of criminal proceedings is illegal and parties entering into it for that purpose are in pari delicto, and neither can have relief against the other.

4. RULES APPLIED.

The voluntary execution by plaintiff of a deed of her lands to the holder of paper forged by her husband and father and brother, for the purpose of stifling a criminal prosecution against them, is not duress for which the conveyance will be set aside where it appears that the conveyance was made by procurement of the wife, under advice of counsel and upon due deliberation and without extortion upon the part of the holder of the forged paper.

*Judgment reversed by the circuit court, October term, 1890, and judgment of the circuit court reversed by the Supreme Court and judgment of the common pleas affirmed, 52 Ohio St., 534, unreported. In the Supreme Court, Jas. H. Hoyt, A. St. J. Newberry, and A. C. Dustin, for plaintiff in error cited: Roll v. Raguet, 4 Ohio, 400, 420; Goudy v. Gebhart, 1 Ohio St., 262; Hooker v. DePalos, 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195; 8 Am. and Eng. Ency. Law, 649; 5 Am. and Eng. Ency. Law, 430; 3 Am. and Eng. Ency. Law, p. 933; Terrill v. Auchauer, 14 Ohio St., 80, 85; Allis v. Billings, 6 Metcalf, 417; Anderson v. Roberts, 18 J. R., p. 529; Story on Contracts, Sec. 405; Devlin on Deeds, par. 81; Knapp v. Thomas, 39 Ohio St., 377, 388; Reece v. Allen, 5 Gilman, (Ill.), 241; Frauchet v. Leach, 5 Cowen, 508; Williams v. Mears, 2 Disn., 608; Bigelow on Fraud, Vol. 1 (Edition of 1888), p. 73; George v. Tate, 102 U. S., 564, 570; Hartshorn v. Day, 60 U. S. (19 Howard), 223; Strong v. Strong, 102 N. Y., 69; Bowen v. Mandeville, 95 N. Y., 237; Moller v. Tuskey, 87 N. Y., 166; Benj. on Sales, Secs. 648, et al.; Doane v. Lockwood, 115 Ill., 490; Brewer ▼. Goodyear et al., 88 Ind., 572; Talcott v. Henderson, 31 Ohio St., 162; Secs. 4198 and 4106, Rev. Stat.; Lindsley v. Coats, 1 Ohio, 243, 245; Baldwin v. Bank, 1 Ohio St., 142, 148; Spangler v. Dukes, 39 Ohio St., 642; Starr v. Starr, 1,Ohio, 321, 327; Bigelow on Fraud, pp. 76-77; Starr v. Starr, 1 Ohio, 321, 327; Spangler

Wheelock v. Bank.

On December 19, 1883, Minnie E. Wheelock, together with her husband, executed a warranty deed of certain premises on Perry street, in the city of Cleveland, Ohio, to the Commercial National Bank, of Cleveland, Ohio, and subsequently on December 28, 1883, the said deed was delivered to the bank. The bank took possession of the premises on that date, and has ever since been the owner of, and in possession of, the said premises.

On April 8, 1885, nearly two years after the deed was executed, Minnie E. Wheelock filed her petition in the common pleas court. In substance, the allegations of the petition are that the bank in the fall of 1883 was in possession of about $15,000 of drafts of the Cleveland Chair Company, a corporation of which C. S. Wheelock, the husband of Minnie E. Wheelock, B. J. Wheelock and E. D. Wheelock, the father and brother respectively of C. S. Wheelock, were the officers and managers; that a part of the paper so owned by the bank was claimed to be forged by the three Wheelocks, and that the bank had caused them to be arrested for forgery, and imprisoned until they were released upon bail. This arrest is alleged to have taken place about the middle of October, 1883. That the bank caused publication to be made in the public press of the arrest of the said three Wheelocks, and great pressure brought to bear upon them and upon the said Minnie E. Wheelock in order to compel her to convey the property mentioned to the bank, so that she was deprived of her free will, and that the title to her property was obtained by the bank without consideration and against her will.

She further alleges that she was under duress at the time she gave this deed, and she sought, in her petition, to have the court decree that

v. Dukes, 39 Ohio St., 642; Truman v. Lore, 14 Ohio St., 144; Knapp v. Thomas, 39 Ohio St., 377, 388; Walker v. Kynett, 32 Iowa, 524; Feret v. Hill, 15 C. B., 207; Hartshorn v. Day, 60 U. S. (19 How.), 223; Williams v. Mears, 2 Disn., 604; 8 Am. and Eng. Ency. Law, p. 651; In re Dixson v. Caldwell, 15 Ohio St., 412, 415; Pomeroy's Remedies and Remedial Rights, Sec. 68; Hager v. Reed, 11 Ohio St., 626, 635; Klonne v. Bradstreet, 7 Ohio St., 323-326; Rankin v. Hannan, 37 Ohio St., 113, 118; 6 Am. and Eng. Ency. Law, p. 245; Wallace v. Seymour & Rennick, 7 Ohio, 158; Truman v. Lore, 14 Ohio St., 144; Walker v. Kynett, 32 Iowa, 526; Spencer v. Marckel, 2 Ohio, 263, 264; Smith's Lessee v. Hunt, 13 Ohio, 260, 268; 2 Yaple Code Practice and Precedents, p. 1; Rowe v. Beckett, 30 Ind., 154; Groves v. Marks, 32 Ind., 319; Peck, Trustee, etc., v. Newton, 46 Barbour, 173; Lombard v. Cowham, 34 Wis., 486; Clark v. Lockwood, 21 Cal., 222; Emeric v. Penniman, 26 Cal., 119; Kahn v. Old Telegraph Mining Co., 2 Utah, 195; Gibson v. Chouteau, 80 U. S. (13 Wall.), 103; Goepinger v. Ringland, 62 Iowa, 76; Kerr on Fraud and Mistake, pp. 44-50; Rowland v. Entrekin, 27 Ohio State, 47, 49; Admr. of John Reed v. Reed, 25 Ohio St., 422; Ivinson v. Hutton, 98 U. S., 79; Reid v. Burns, 13 Ohio St., 49, 59; Rowland v. Entrekin, 27 Ohio St., 47; Massie v. Stradford, 17 Ohio St., 597; Buckner v. Mear, 26 Ohio St., 514; Rankins v. Hannan, 37 Ohio St., 113; Sheeful v. Murty, 30 Ohio St., 50; Dodsworth v. Hopple, 33 Ohio St., 16; Truman v. Lore, 14 Ohio St., 144; Kent's Commentaries, Vol. 2, 13th Edition, p. 234; Tyler on Infancy, p. 43, et seq.; also pp. 51-2; also p. 70; Story's Equity Jurisprudence, 13th Ed., Vol. , Sec. 24; McVeigh v. Ritenour, 40 O. S., 107; Corry v. Gaynor, 21 Ohio St., 77, 280; Reed's Administrator v. Reed, 25 Ohio St., 424; Moore v. Chittenden, 9 Ohio St., 563; Moore v. Adams, 8 Ohio, 373, 375; Herbst v. Manss, 8 Dec. (Re.) 15; Roll v. Raguet. 4 Ohio, 400, 420; Goudy v. Gebhardt, 1 O. S., 262; Hooker . DePalos, 28 O. S., 251; Kahn v. Walton, 46 O. S., 195; Moore v. Adams, 8

Cuyahoga Common Pleas.

the said bank should reconvey to her her title to the property in fee simple, by a short day to be named, and that, in default of such conveyance, the decree of the court operate as such conveyance, and she also sought an accounting of the rents and profits during the time the bank was in possession.

A motion was filed by the defendant, the bank, and a large portion of the allegations of the petition stricken out.

On June 20, 1887, more than two years after the suit was begun the plaintiff filed an amended petition. In her amended petition, she omitted the parts stricken out by the court on motion, from the original petition, but in other respects, the two petitions were substantially the same, although the order in which the allegations were stated in the two petitions was not in all respects alike. After stating, in her amended petition, the facts fully and completely, as claimed by her, and substantially as stated in her original petition, she closed her first cause of action of the amended petition in the following words:

"And she avers that by reason of the matters and things above set forth, said deed was and is null and void, and she insists that the same shall be so treated; and she avers that she is the owner in fee simple of said premises, and has a legal estate therein, and is entitled to the possession thereof, and that the defendant unlawfully keeps her out of the possession thereof."

In a second cause of action in her amended petition, she alleges that the bank has retained possession of the premises and received the rents. and profits thereof, and that she believed that they amounted to $500 per year over and above the taxes paid on the premises.

Ohio, 373; Haines v. Rudd, 102 N. Y., 372; Smith v. Rowley, 66 Barb., 502; Watkins v. Baird, 4 Am. Dec., 170; Meek v. Atkinson, 19 Am. Dec., 653; Hatter v. Greenlee, 26 Am. Dec., 370; Devlin on Deeds, pp. 81-82; Yeoman, v. Lasley, 40 Ohio St., 190; Baldwin v. Snowden, 11 Ohio St., 203.

Prentiss and Vorce, for defendant in error, cited: 8 Am. and Eng. Law, 649; Gunsaullus v. Pettit, 46 Ohio St., 27; Stat. Sec. 5130; Calvino v. State, 12 Ohio St., 60, 72; Ad. Cont., 732 (bottom page); Chitty on Cont., 597 (Ed. of 1851); U. S. v. Grossmayer, 76 U. S. (9 Wall.), 72; 19 Am. Dec., 71; Terrill v. Achauer, 14 Ohio St., 80, 85; 44 Pa. St., 12-3; 2 Pet. Sup. Ct., 539; 2 Story E. J. Sec. 695; 1 Story, E. J., Sec. 298; Cox v. Donnelly, 34 Ark., 766; Burgett v. Burgett, 1 Ohio, 469; Anderson's Dic. of Law, 387; Story Cont., Sec. 394; 3 N. H., 508, 511; 5 Hill, 158; 74 U. S. (7 Wall.), 215; Whar. Cont., Sec. 151; Bishop Cont., Sec. 721; 26 Barb., 122; 6 Wis.,54, and 14 Cox's Crim. L.,Ca. 617-8, 623; Fribley v. State, 42 Ohio St.,205; 18 John,515; Nash v. Atherton, 10 Ohio,163; Webb's Admr. v. Roff,9 Ohio St.,430-4; McVeigh v. Ritenour, 40 Ohio St.,107-8; Truman v. Lore, 14 Ohio St., 144; p. 155 (near the top of the page); Williams v. Mears, 2 Disn.. 604, 508: 17 New York, 270; 13 Mass., 177-8; 100 Mass., 355; 5 Allen 59-60; 7 Cush.. 181-183; 13 Pa. St., 359-360; 92 Pa. St., 171; 100 Pa. St., 51-52; 56 III., 25, 27; 77 Ala., 290; 57 Wis., 288-289, 290-291; Ellis v. Davis, 109 U. S., 485; Dick v. Railroad Co., 38 Ohio St., 389; Dev. on Deeds, Sec. 83; Blair v. Coffman, 5 Am. Dec., 659; 26 Am. Dec., 376. note; 14 New York, 123; 11 Mass., 379; 13 Mass., 371; Truman v. Lore, 14 Ohio St., 144, 151; 3 Am. and Eng. Law, 933, note 2; 17 Am. and Eng. Law, 406; 22 Pick., 181; Hooker v. DePalos, 28 Ohio St., 251, 260; 107 N. Y., 111; 102 New York, 272; 26 N. Y., 12; 14 R. I., 618-620; 131 Mass., 51, 55; Bailey v. Williams, 4 Gifford, 638, 645; 1 Law Rep. E. & L., App., 200; Law Reports, 8 Ch. Div., 473-474, 477; 11 Vermont, 252; 13 Ves. Jr., 581; 151 Pa. St., 594.