Green v. Phœnix Mutual Life Insurance , 134 Ill. 310 ( 1890 )

Mr. Justice Shope

delivered the opinion of the Court:

We are of opinion that a single point, only, is presented by this record which we can properly consider. One of the important questions involved at the hearing was, whether at the time of the execution of the trust deeds, and the subsequent sale thereunder, and from thence to shortly before the filing of the original bill, appellant had been and was insane. It is substantially conceded, and if it was not it is clearly manifest, that the issue of insanity, and whether the complainant was thereby excused from the delay in bringing her bill, or whether she was guilty of laches therein, was of controlling importance.

The law presumes the fact of sanity, and hence the burthen is cast upon the party alleging insanity, to establish it by a preponderance of proof. No rule can be formulated as to the quantum of evidence necessary to establish insanity, otherwise than that it must be sufficient to overcome the legal presumption of sanity, and to overbalance the testimony tending to sustain such presumption. This preponderance of evidence necessary to satisfy the judicial mind, does not, as a matter of course, depend upon the number of witnesses testifying on ■either side, but when all are apparently possessed of the same means of knowledge, and are equally intelligent and credible, the greater number must generally prevail. The trial court must, of necessity, exercise discretion as to the number of witnesses to prove a given fact that is not disputed, or that is merely collateral to the main issue, depending very much upon the nature and subject matter of the inquiry. Familiar illustrations of cases in which the discretion could not be exercised, where the inquiry is single, as, in cases of right of way, the grant of a prescriptive right, the proof of a custom, ■or the identity of persons or property, which are disputed, will readily occur to any one. The phases of insanity, and the facts and circumstances which may tend to establish it and are proper for consideration, -are so numerous and varied that a great number of witnesses may be required to determine the fact in issue; and it is found that persons of equal intelligence differ in opinion as to the inference to be drawn from such facts and circumstances. In such eases great latitude has always been allowed, and should prevail. No reason can be perceived why the same rule might not be applied to any single collateral fact that would be applied to such collateral fact in any other inquiry. It must be apparent that the limitation of witnesses, in such eases, to an equal number on each side, as was here done, even supposing they were of equal credit and had equal means of knowledge, would be to defeat the party holding the affirmative of the issue.

The court may undoubtedly limit the number of witnesses called as experts, and in some cases for the purposes of impeachment. Fraser v. Jennison, 42 Mich. 233; Bunnell v. Butler, 23 Conn. 69; Bissel v. Cornell, 24 Wend. 357; 2 Phillips on Evidence, (Cowen & Hill’s notes,) 396, note 324. It should, however, be understood, that in such cases the exercise of the discretion must be reasonable. The court may not arbitrarily determine the number of witnesses that may testify in such eases. In 1 Wharton on Evidence, see. 505, the rule is thus stated: “A trial might be mischievously delayed if a party were permitted to call all the’ witnesses he chooses to prove any one particular relevant point, and, consequently, when such point appears to the court to be satisfactorily established, the further calling of witnesses to prove it may be stopped, subject, however, to the right. to recall, should the point be subsequently disputed.” So in Mueller v. Rebhan, 94 Ill. 142, and in Gray v. St. John, 35 id. 222, the rule is laid down by this court; that where a particular fact is not controverted, or is conceded,_ the trial court may rightfully limit the number of witnesses called to establish such fact. Best on Evidence, secs. 47, 48, 596.

The main fact in issue—that is, as to the sanity of the complainant,—was disputed, both in the answer and by proof, and it seems clear from the remarks of the court, that at the time he made the order limiting the complainant to nine witnesses, he was not satisfied that the fact of insanity was established. Moreover, if the power of the trial court to limit the number of witnesses, as here exercised, existed, which can not be conceded, it should have been done at the beginning of the trial, so as to give each party an opportunity of selecting such witnesses as might be deemed most important. This would have the merit, at least, of placing the parties on an •equal footing. By the course pursued, the complainant was practically deprived of this privilege, except as* to the last "witness.

While the court might, as before said, in the exercise of a ■sound discretion, limit the number of witnesses called to prove any collateral fact, or any fact conceded, or which the court might regard as established, we are of opinion that the court ■erred in limiting the witnesses to be called by complainant upon this issue,—and especially must this be so where the order was made after the designated number of witnesses had been examined by her.

We do not deem it proper to consider the other points in the case, as it must be again heard, and therefore refrain from the expression of opinion thereon.

For the error indicated, the decree of the circuit court will he reversed, and the cause remanded.

Decree reversed.