Davis v. Sim

¶1(dissenting) : I think the plaintiff had notice of the importance of Hoff’s testimony when Hoff refused to tell him what he knew as to when the dam went out. I am inclined to believe that a reasonably diligent inquiry would have revealed Hoff’s whereabouts before the trial. But at all events I think under the circumstances the plaintiff should have informed the court, before the case was submitted to the jury, of what he knew concerning Hoff, and should have asked time to produce him, especially when, on the third day after the trial was begun, and the sixth before it was ended, he saw and talked with Hoff’s sister as to his residence. In allowing the case to go to the jury without saying anything about this feature of the matter the plaintiff took his chance of winning with the evidence at hand. I think the trial court’s decision that due diligence was not shown should not be disturbed.-