I concur. I agree with the holding in the majority opinion that plaintiffs’ failure to mention, during the trial, their inability to secure Burness as a witness, as a matter of law, under the facts here existing, bars them from relying on accident or surprise as a ground for a new trial. I disagree, however, with the holding that, as a matter of law, *247plaintiffs’ counsel was guilty of a lack of due diligence in failing to take the deposition of the witness. The majority opinion fully and fairly states the facts. It therein appears that the case was originally set for trial on October 22,1941. Burness was then available, and had secured the permission of his commanding officer to attend. The case was then put over to November 13th. Burness was then available, and about this time advised plaintiffs’ counsel that it would be a simple matter to obtain leave to attend the trial. On December 31st the case was set for January 5th. As late as December 30th plaintiffs’ counsel must have believed Burness was available, because on that date he notified him the trial date had not been set, but that when it was, to come to San Francisco by plane. It was not until January 3, 1942, that plaintiffs’ counsel was informed that Burness was not available. At that time he was equally unavailable so far as taking his deposition was concerned. The majority opinion holds that, as a matter of law, plaintiffs’ counsel was guilty of a lack of due diligence in not taking Burness’ deposition, at least after December 7, 1941. In my opinion, under such a state of facts, whether plaintiffs’ counsel exercised due diligence in failing to take the deposition, and whether he was reasonably entitled to believe that Burness would be available, were questions of fact for the trial court. It may be conceded that the trial court would have been justified in finding a lack of due diligence, but the point is, that, in support of the order, we must assume it found the other way. While we know now in 1943 that those in the armed forces are frequently and unexpectedly transferred from place to place, we did not have that knowledge in December of 1941. Keeping in mind the wide discretionary powers of the trial court in passing on such motions, it is my opinion that the trial judge was justified in finding that up to January 3, 1942, plaintiffs’ counsel was reasonably justified in believing that the witness would be available when needed. For that reason, he was not guilty of a lack of due diligence in failing to take the deposition of the witness.
Respondents’ petition for a hearing by the Supreme Court was denied December 27, 1943. Carter, J., and Schauer, J., voted for a hearing.