from the annoyance of her presence, he by the foregoing that an agreement' of sepaagreed to pay her $2,400 per year for main-ration between a husband and wife which tenance and to provide a furnished house for imports a valid consideration and otherwise her occupancy. For this defined, though lim- conforms to the requirements of the law of ited, dispensation of his bounty, she agreed, contracts will not be upheld. Crenshaw v. in terms as minutely particular as if drawn Crenshaw, 276 Mo. 471, 208 S. W. loc. cit. by a skilled scrivener, to thereafter never 251, and cases; Rough v. Rough (App.) 195 communicate with him, either by mail or S. W. 501. The old doctrine based upon the telephone, to abstain from entering any resi- aphorism that marriages are uniformly benedence, house, or place of business where he ficial and separations prejudicial has been might be, and to refrain at all times from dissipated by the modern view of the marital personally molesting, disturbing, or troubling relation and the changed legal status of the him. The penalty imposed upon her for a respective parties thereto. However, under violation of these defined disturbances of his the facts in the case at bar, the agreement quietude and equanimity was to invalidate disclosing no valid consideration so far as the agreement and to render his obligation of the husband is concerned, and containing no no effect. covenant on the wife's part other than a promise of silence and absence, so far as concerns her relations with him, it should not be held to be valid. Baum v. Baum, 109 Wis. 47, 85 N. W. 122, 53 L. R. A. 650, 83 Am. St. Rep. 854.

A coloring of mutuality is sought to be given to these obligations in the proviso that each party shall retain and dispose of their personal possessions free from the claim of the other.

[3] A husband's prime and paramount duty, which begins with the marital relation and ends with its severance, is to support and maintain his wife in such a manner as is consistent with his situation and condition in life. 21 Cyc. p. 1151 D, and notes. This duty found early recognition in the common law, and has not been lessened by legislation, Married women's acts, which have empowered the wife to contract and be contracted with, and to control and dispose of her property; and her investiture with the rights of a citizen have not rendered less obligatory a compliance with this duty of the husband. There exists on her part, it is true, the correlative duty of service, but this does not affect the husband's duty so far as the determination of the matter at issue is concerned. Plummer v. Trost, 81 Mo. 425; Rutledge v. Rutledge (App.) 119 S. W. 489.

The right declared in the agreement of the parties to dispose of their respective personal property free from any claim of the other adds nothing to the validity of the transaction. This right has always existed in the husband and was conferred on the wife by the Married Women's Act. Section 7323, R. S. 1919. Adding nothing to and taking nothing from the rights of these parties, the provision is therefore nugatory, so far as it may determine the character or affect the validity of the contract. The agreement of the wife to execute, acknowledge, and deliver deeds or mortgages to real estate on the request of the husband and to release dower therein cannot be construed as giving any legal effect to the instrument in so far as concerns the determination of any question as to its validity, arising in the case at bar.

Nor do we regard the agreement of the [4, 5] Henry Wood's promise, viewed in trustee named therein covenanting and the light of its legal effect, did not lessen the agreeing to and with the husband to indemobligation imposed upon him by law to sup-nify and hold him harmless from all debts port and maintain his wife. Her obligation, of the wife contracted or that may thereafter stripped of unnecessary words, is that she will let him alone. No principle in the law of contracts is better established than that a promise to do what the promisor is required by law to do constitutes no consideration for the promise. If, therefore, Mrs. Wood, by her husband's promise, got no more than that to which she was entitled under the law, and presently, but not pertinent here, we will contend that she got less, there was lacking from the transaction that necessary essential to a valid contract, namely, a consideration. Egger v. Egger, 225 Mo. loc. cit. 143, 123 S. W. 928, 135 Am. St. Rep. 566; Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578, 15 S. W. 844; Lappin v. Crawford, 186 Mo. 471, 85 S. W. 535; Tucker v. Bartle, 85 Mo. 114; Long v. Towl, 42 Mo. 549, 97 Am. Dec. 355; 9 Cyc. 347.

be contracted by her on her own account as importing any consideration for the making of this contract. It is true that in many of the earlier cases a stipulation in an agreement of this character by the trustee to hold the husband harmless and indemnify him against debts contracted by the wife has been held to show a sufficient consideration from the wife to the husband. It will be found, however, upon an examination of these cases where any reason is attempted to be given for the ruling, that they are rendered under statutes which, like the common law, merged the legal existence of the wife in that of the husband, and, in the first instance, rendered the existence of a trustee in contracts of this character necessary, and thus required that the contract be made in fact with the trustee instead of with the We would not be understood as intimating wife. Garbut v. Bowling, 81 Mo. 214; God

(232 S.W.)

quired or to be acquired (Aspey v. Barry, not contemplated or intended to nor did the 13 S. D. 220, 83 N. W. 91). widow thereby divest herself of her marital rights under our statute to her share in her husband's estate.

[6] Affecting, as these settlements necessarily do, rights created by law which have gradually been liberalized and extended for the benefit of married women, it is not only the part of wisdom, but a proper exercise of judicial discretion, that they should be given a strict, rather than a latitudinary construction so far as they may tend to limit the rights of the wife.

[7] But, whether strictly or liberally construed, there is nothing in the agreement at bar which in express terms or by reasonable implication can be held to sustain the conclusion that it was intended for any other purpose than to afford written evidence of a determination of the parties to live apart; for the husband to provide for the wife's support and as a quid pro quo therefor, if such it can be termed, for her to remain away from him and at his will, to join him in the conveyance and relinquishment of her dower in any real estate he might own or acquire during the separation. Not a word is expressed or even intimated that these obligations were intended to affect her rights by reason of the marriage in the event of his death. A fair construction of contracts of this character demands more definite terms than are found in this agreement to divest the wife of her rights under the law. We therefore rule adversely to the contention of the appellants as to the meaning of this agreement.

IV. Is the agreement fair, reasonable, and just?

Other questions are presented by able and industrious counsel a consideration of which is rendered unnecessary by our disposition of the case.

The judgment of the trial court is affirmed. All concur; JAMES T. BLAIR, C. J., in paragraph 3 and result.

GRIMM v. GLOBE PRINTING CO. (No. 21418.)

(Supreme Court of Missouri, Division No. 2. June 23, 1921. Motion for Rehearing Denied July 19, 1921.)

I. Carriers 315(3)-Petition held to charge specific negligence in starting elevator, to which doctrine of res ipsa loquitur inapplicable.

by the negligence of defendant's servant in sudA petition alleging that deceased was killed denly starting or permitting a freight elevator to start up, while deceased was placing machinery on it, without warning, when the operator knew or by exercising ordinary care could have known deceased was in a dangerous position, charged specific negligence, thus preventing the application of the doctrine of res ipsa loquitur.

2. Carriers 318 (8)-Evidence held insufficient to prove sudden starting of elevator caused by operator.

In an action for the death of plaintiff's husband by reason of the negligence of defendant's elevator operator in starting or permitting the elevator to start up while deceased was loading a furnace on it, evidence that, on signal, the operator brought the elevator to the desired point and assured deceased it was all right to load the furnace held insufficient to prove that the sudden starting of the elevator was caused by the operator's negligent act or want of action.

It is held in some jurisdictions that contracts, as at bar, are presumptively valid without proof aliunde of their equity or justice. This is held in states where the wife has, by statute, been given complete legal independence or is no longer sub potestate viri. Daniels v. Benedict, 97 Fed. 367, 38 C. C. A. loc. cit. 597; Kellogg v. Kellogg, 21 Colo. 181, 40 Pac. 358; Robertson v. Robertson, 25 Iowa, 350; Howell v. Howell, 42 Okl. 286, 141 Pac. 412; In re Frank's Estate, 1953. Pa. 26, 45 Atl. 489; Tuxford v. Tuxford, 6 Sask. L. R. 96. The contrary has been held by one of our Courts of Appeals, Speiser v. Speiser, 188 Mo. App. 328, 175 S. W. 122, and in Nichols v. Nichols, 169 Mich. 540, 135 N. W. 328; McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931, 33 L. R. A. (N. S.) 1074; Becket v. Becket, 175 Ill. App. 185; Hungerford v. Hungerford, 161 N. Y. 550, 56 N. E. 117. In view of the construction we have given to the agreement at bar this question becomes academic.

Even if it be conceded, as we have stated, that a consideration may be eked out of some provision of the agreement, its terms are such as to authorize a ruling that it was

Carriers 316(3)-Rule of res ipsa loquitur held applicable to negligent killing of transfer company employé while loading freight on elevator.

The rule of res ipsa loquitur applies to action for the death. of an employé of a transfer company, while loading a furnace on a freight elevator which suddenly started up, though deceased was in the employ of an independent contractor, the testimony showing that the eleunder deceased's control only while serving vator operator was in defendant's employ and him as he did any person using the elevator, and defendant owing deceased the same duty a railway carrier owes to passengers.

4. Death 70-Evidence deceased left no estate inadmissible.

In a widow's action for the death of her husband, admission of testimony that deceased

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

left no estate is error, neither the leaving of work, catched him between the elevator and an estate nor the want thereof being pleadable that woodwork." (Quotation from testimony in mitigation or enhancement of damages, of witness Kolaks.) though financial burdens on the widow because of existence of dependent children may be

shown.

5. Release 29 (3)-Settlement with other than joint tort-feasor not considered in reduction of damages.

In an action for the death of a contractor's

employé on defendant's elevator, the fact that plaintiff received money from his employer in consideration of a dismissal of case as to him, with an agreement to bring no further suit against him, cannot be considered in reduction of damages; Rev. St. 1919, § 4223, being applicable only in the case of joint tort-feasors or wrongdoers.

6. Appeal and error 843 (1)-Errors likely to be eliminated on new trial not considered. Questions likely to be eliminated on a new trial will not be considered where the case is remanded on other grounds.

elevator were the only ones present when Deceased, Kolaks, and the operator of the the accident occurred. Kolaks was injured at the same time and had a damage suit pending against defendant at the time of the trial. The accident occurred September 25, 1917, and the death of plaintiff's husband occurred the following day.

It appeared that plaintiff had dismissed her case as to Ziegler and had been paid $500. A copy of the paper signed by her at the time the money was paid to her was introduced in evidence and recited that the plaintiff had theretofore instituted suit against Oscar Ziegler and the Globe Printing Company and had dismissed as to Ziegler and had received $500 from said Ziegler and had agreed never to reinstitute said suit against Ziegler and never bring any other suit against said Ziegler to recover for the

Appeal from St. Louis Circuit Court; Sam- said death of her deceased husband. uel Rosenfeld, Judge.

Action by Catherine Grimm against the Globe Printing Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

For defendant, Joseph H. Klein testified that he was chief engineer at the time of the accident. He had the Ziegler Company come over to the plant and move some machinery on the day of the accident and the day beWilbur C. Schwartz and Charles E. Mor- fore. He was asked what he told the Ziegrow, both of St. Louis, for appellant.

ler Company, and objection was made to

W. H. Douglass and Wm. H. Bartley, both such question by plaintiff and sustained by of St. Louis, for respondent.

DAVID E. BLAIR, J. This is an appeal from a verdict and judgment of the circuit court of the city of St. Louis for $9,000 as damages for the death of respondent's husband, caused by alleged negligence of appellant. For convenience, the parties will be referred to as plaintiff and defendant, as in the court below.

the court. Defendant then offered to show by said witness "that he made the oral agreement with Robert Ziegler & Sons to move these furnaces in question and this other machinery they did move, and that they undertook to do it in their own way, their own method, and with their own men, and without being subject to the control of the defendant Globe Printing Company in any way, only as to the result of the work." On objection by plaintiff this offer was refused by the trial court. The witness testified he told the operator of the elevator to do whatever Grimm, the deceased, told him to do. He had heard Grimm giving directions to the elevator operator previous to the time of the accident. The sole duty of the elevator operator was to operate the freight and passenger elevator, and that he was employed by defendant at the time of the accident, but left defendant's employ two or three days after the accident and was not in defendant's employ at the time of the trial.

The deceased was employed by Robert Ziegler & Sons, and, with other employés, who were working under him, was engaged in moving a furnace for defendant at the time he was killed. This furnace weighed between 500 and 600 pounds, and was being placed in the freight elevator of the Globe Democrat Building to be taken to another floor of the same building. The furnace was moved on rollers to the elevator, and on signal the elevator was brought to the floor where deceased was working on said furnace. Deceased and one Kolaks started to roll the furnace into the elevator, and had the front Witness Charles Gruet testified that he rollers about to the center of the elevator and was an apprentice in Ziegler & Sons' employ, the rear ones outside. It became necessary to and that Grimm was the boss at that job, and change the rollers, and while this change was that he had heard Grimm direct the elevator being made something happened to the ele operator in the course of his work; that vator, and "the elevator went out suddenly, when Grimm wanted the operator he would and the furnace and elevator went out sud- signal and tell him what to do, and when he denly, the furnace fall and knock me to the was not using the elevator he had nothing left side of the door and broke the doors off, to do with the operator. The operator of the and catch Mr. Grimm between that wood-elevator was not called as a witness by either

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"The defendant carelessly, negligently caused The petition alleges that the accident "was and permitted the train on which plaintiff was directly caused on account of the negligence riding as a passenger to come in violent colof the defendant or its operator in charge of lision with another train of defendant's; the elevator in suddenly starting said ele*** that said collision was occasioned vator, or in permitting it to start, while the deceased was placing the machinery upon it,