Chicago & Northwestern Railway Co. v. Button

Mr. Justice Scott delivered the opinion of the Court: This action was to recover for personal injuries to the wife, and was brought in the names of the husband and wife. This Avas error. It has been repeatedly decided by this court that, for an injury to the Avife, in cases like this, the right of action is in the wife, and, by the practice which prevails under our statute, she alone must sue. C. B. and Q. R. R. Co. v. Dunn, 52 Ill. 260; Same v. Dickson, 67 Ill. 122. On the remandment of the cause, the improper party, the husband, under the Practice act of 1872, may be dismissed out of the case and the cause proceed in the name of the party in interest. This fact will render it necessary to consider briefly the points made on the instructions. Objection is taken to the sixth instruction in the series given on behalf of defendants in error. It informs the jury that all verbal admissions ought to be received with great caution; the evidence consisting, as it does, in mere repetitions of oral statements, is subject to much imperfection and mistake; the party himself being misinformed, or not having clearly expressed his own meaning, or the Avitnesses having misunderstood him; that it frequently happens the witnesses by unintentionally altering a few expressions really used, give an effect to the statement completely at Arariance Avith Avhat the party did say. The instruction assumes to state the doctrine in regard to verbal admissions, and the error consists in the omission to state an important qualification which, we think, has its foundation in reason and authority, viz: where the admission is deliberately and understandingly made, and precisely identified, the evidence it affords is. often of the most satisfactory nature. Greenleaf on Evidence, Vol. 1, § 200 ; Stacy v. Cobb, 36 Ill. 340; Diversy v. Kellogg, 44 Ill. 114. A case might arise where the doctrine of the text of the instruction might be applicable to the facts, and would not tend to mislead the jury, but in view of the evidence in this case, Ave think the rule, as stated, should be qualified as Ave have indicated. There was no error in the refusal of the fourth instruction asked by plaintiff in error. So far as it states a principle of laAV applicable to the case, it was given in the third instruction asked by him, and the court was not required to give it a second time. The instruction, in its present form, can have no application whatever on another trial if the husband, John Button, is dismissed out of the case. For the reasons indicated, the judgment is reversed and the cause remanded. Judgment reversed.