Midway Bank & Trust Co. v. Davis. mum penalty of $10,000 allowed by the Damage Act, R. S. 1919, sec. 4217. That statute is purely penal and is in no sense or degree compensatory, as was held in Grier v. Ry. Co., 228- S. W. 454. If the plaintiff will, within ten days, enter a voluntary remittitur of $17,000, the judgment will be affirmed for $15,000 as of the date of its rendition; otherwise, it will be reserved and remanded. All concur except Graves and Walker, JJ., who dissent in separate opinions. WALKER, J. (dissenting).-I concur in this opinion, except in the conclusion which directs a remittitur as a condition precedent to an affirmance of the judg ment. If the verdict is excessive to the extent of shocking a sense of justice, the conclusion is authorized that it was the result of passion and prejudice and the judgment should be reversed and the cause remanded. If, however, as the opinion expressly holds, the finding was not the result of passion and prejudice, it is no part of the province of this court, despite rulings to the contrary, to affirm on the condition of a rimettitur. Such a conclusion assumes that the appellate court with nothing before it, except the cold record, is better qualified to determine the amount of the verdict than twelve men, sworn triers of the facts, who saw the witnesses and heard their testimony; and whose finding the trial judge refused to disturb. GRAVES, J. (dissenting).-I. I do not concur in the holding that our statute, Section 4217, Revised Statutes 1919, is purely penal. I know that we have recently so ruled, which ruling, in my judgment, is without rhyme or reason. This statute in allowing a recovery, says that the defendant "shall forfeit and pay as a penalty the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the. discretion of the jury." In law a penalty is a sum fixed for the doing of a wrongful act. In this instance the Midway Bank & Trust Co. v. Davis. wrongful act is negligence. In Missouri, we have consistently ruled that there are no degrees of negligence, and that we will not approve the doctrine of comparative negligence. If negligence is without degrees, as we have consistently ruled, then upon what is the jury to exercise its discretion, in fixing the penalty? The jury can say that the negligence of defendant caused the death, but the penalty follows without considering the degree of the negligence. Without saying there are degrees of negligence recognized in this State (a question long since adversely ruled, and continuously ruled thereafter) there is absolutely nothing upon which the jury can exercise a discretion. In the matter of a penalty for the taking of life, the earning power, the age or expectancy of deceased, and all other things allowable as compensation are not to be considered. Penalty is one thing, and compensation is another. If the statute is purely penal, as my learned brother says, then the mere matter of death by negligent act is all there is properly before the jury. Compensatory matters have no place in the fixing of a penalty. Expectancy, earning power, and other things of like character have no place in the case. The time is near at hand when we will be forced to discover that our recent ruling upon this statute is without foundation. That time will come when we are called upon to pass upon the propriety of evidence in these cases as to earning capacity, expectancy, and other matters going to compensation solely. II. Another novel question is raised as to the limit of recovery in cases, under the Federal act, in this State. We have been allowing a recovery in death cases in excess of the Missouri statutory limit. The Federal act fixes no limit, but it provides for trials by State courts. If this had not been interstate work, the limit of recovery in Missouri would have been $10,000. Had the character of the work not been interstate, the negligence charged in this case could not have resulted in a verdict of more than $10,000. Our State courts are thus In re Estate of Henry Wood. placed in the position of saying to one class of our citizens, You can only recover $10,000, and to the other class (those working in interstate commerce), You can recover more than $10,000 for the identical negligence. I have long thought this wrong, and take this opportunity to so express myself. I therefore dissent to the idea of allowing a recovery in excess of $10,000, the amount fixed by the statute of the forum. In re Estate of HENRY WOOD; GEORGE M. BLOCK, Executor, et al., Appellants, v. MINNIE WOOD, No. 21,132. In re Estate of HENRY WOOD; GEORGE M. BLOCK, Executor, et al., Appellants, v. MINNIE WOOD, No. 21,133. In Banc, July 8, 1921. 1. CONTRACT: Interpretation: Extraneous Evidence. It is one of the elementary canons of construction that in the interpretation of an unambiguous written agreement, whose purpose is apparent, resort to extraneous evidence, documentary or otherwise, is unnecessary and unauthorized. 2. 3. 4. Married Woman: Concerning Share in Husband's Estate. While the Married Woman's Act (Sec. 8304, R. S. 1909; Sec. 7323, R. S. 1919) authorizes a married woman to make any contract that a femme sole could make, and empowers her to make contracts with her husband, it is not clear that she can make a contract with reference to a subject that a femme sole could not make, such as a wife's distributive share in her husband's estate. : Essentials. Assuming that a married woman may make a contract with her husband disposing of her prospective distributive share in his estate, such a contract, to be valid, must be supported by a consideration, the release must be unequivocal, and it must be fair, reasonable and just. : : -: Consideration: Lawful Allowance. A promise to do what the promisor is required by law to do constitutes no consideration 5. 6. 7. 8. In re Estate of Henry Wood. tion and maintenance, received from her husband no more than that to which she was entitled under the law, there was lacking from the contract an essential element, namely, a valid consideration. : -: Separate Existence. An agreement in the contract for separation that the wife will not at any time or in any way molest, disturb or trouble the husband, nor knowingly enter any residence or other house or place of business where he may be, nor write, telephone or otherwise communicate with him except through a named trustee, does not constitute a consideration for a release of her distributive share in his estate, nor lessen the obligation imposed upon him by the law to support and maintain her. -: Disposal of Individual Property. An agreement in the contract of separation between a husband and wife that each is to have the right to dispose of his or her personal property free from any claim of the other added nothing to the validity of the contract, since said right has always existed in the husband and was conferred on the wife by the Married Woman's Act (Sec. 7323, R. S. 1919). : Agreement of Trustee to Pay Wife's Debts. An agreement in the wife's and husband's contract of separation by which the trustee named therein as a party covenanted and agreed to indemnify the husband and hold him harmless from all debts contracted or that might thereafter be contracted by her on her own account, constituted no consideration for the contract. Under the Married Woman's Act legal existence of the wife is not merged in that of the husband, and the intervention of a trustee in such a contract is unnecessary, and his obligation assuming the debts of the wife involved no correlative duty on the part of the husband to the trustee, and imported no consideration. Unless the agree : Unequivocal Release of Marital Rights. ment for separation and separate maintenance of the wife unequivocally declares or by fair implication can be construed to mean that she and her husband thereby intended to settle and adjust all their property rights and to foreclose her claim to any interest in his estate upon his decease, it will not be so construed. An agreement that they are to live separate and apart, that he is to provide for her support on condition that she remain away from him, and upon his request to join him in the conveyance and relinquishment of her dower in any real estate he might own or acquire during the separation, but with no word expressing or intimating that these obligations were intended to In re Estate of Henry Wood. affect her marital rights in his estate in the event of his death, was not an agreement releasing her statutory claim to a distributive share in his personal estate. Appeal from St. Louis City Circuit Court.-Hon. Vital W. Garesche, Judge. AFFIRMED. Lewis & Rice, Holland, Rutledge & Lashly, Bryan, Williams & Cave, and Eliot, Chaplin, Blayney & Bedal for appellants. The trial court erred in holding that the separation. agreement herein was not valid. (1) Separation agreements between husband and wife are enforceable under the laws of Missouri, both at law and in equity, and may include a settlement of property rights. Husband and Wife, 21 Cyc. 1592-96; Contracts, 9 Cyc. 519-520; Perry v. Perryman, 19 Mo. 469; Garbut v. Bowling, 81 Mo. 214; Specht v. Dausman, 7 Mo. App. 165; Schmieding v. Doellner, 10 Mo. App. 373; Roberts v. Hardy, 89 Mo. App. 86; Fisher v. Clopton, 110 Mo. App. 663; Stanton v. Johnston's Estate, 177 Mo. App. 57; Banner v. Banner, 184 Mo. App. 396; Speiser v. Speiser, 188 Mo. App. 328; Gilsey v. Gilsey, 195 Mo. App. 407; Rough v. Rough, 195 S. W. 501; O'Day v. Meadows, 194 Mo. 588; Crenshaw v. Crenshaw, 208 S. W. 249; 9 R. C. L. 524, 528, 529, 531. (2) The separation agreement, in giving each party the power to dispose of personal property free from any claim of the other, gave each the power to dispose by will free from any claim of the other. The power to dispose of property free from claims of the other party to the settlement, includes the power to dispose by will. Koerner v. Wilkinson, 96 Mo. App. 517; Benz v. Fabuvin, 35 Atl. 760; Missionary Society v. Wadhams, 10 Barb. 597; Forsythe v. Forsythe, 108 Pa. 129; Norcom v. D'Oench, 17 Mo. 98; Pendleton v. Bell, 32 Mo. 100; Wead v. Gray, 78 Mo. 59; Campbell |