Kolber v. Frankenthal , 159 Ill. App. 382 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

We are of the opinion that this suit is brought by the plaintiff in her own right, and that the cause of action is her separate property. This being so, the husband was a competent witness, and in refusing to allow him to testify the court below committed error, for which the judgment must be reversed and the cause remanded. Johnson v. McGregor, 157 Ill. 350; Anderson v. Friend, 71 Ill. 475. Nor do we think that a specific offer as to what the husband would testify to necessary, where, as in this case, he was excluded as being incompetent to testify. Haussknecht v. Claypool, 66 U. S. 431; State v. Thomas, Ill Ind. 515. In an event, however, the defendant is es-topped from raising this question.

As to the demurrer to the statute of limitations; the second original count charges, in substance, that the defendant was guilty of malpractice while the third additional count, to which the statute of limitations was interposed, charges wilful and wanton conduct on the part of the defendant, and is essentially one for assault and battery,—being a different cause of action from that stated in the two original counts. This count having been filed more than four years after the cause of action accrued, the demurrer to the plea of statute of limitations as to this additional count was properly overruled.

The court below did not err in refusing to allow Doctor Murphy to state what his record of the examination showed, in addition to what he had testified to. The witness was at liberty to examine the record to refresh Ms recollection, but he could not read it as independent evidence where he had no rcollection of the circumstances, and could only say they were true because he found them on Ms memorandum. C. & A. R. R. Co. v. Adler, 56 Ill. 344.

Reversed and remanded.

Mr. Presiding Justice Mack did not participate in the consideration of this case.