School Dist. No. 22, Love County v. Culwell

1917 OK 106, 162 P. 949, 62 Okla. 283, 1917 Okla. LEXIS 299

• Court: Supreme Court of Oklahoma
• Decided: January 23, 1917
• Docket: 8070
• Status: Published

Opinion

Opinion by

BURFORD, G.

This was an action to recover an insurance premium. The action was founded upon the issuance of a renewal policy by the agent and an alleged acceptance thereof by conduct of the school district officers. Plaintiff was allowed, over objections, to prove the existence of a custom among insurance agents to renew polL cies of insurance without notifying the insured in advance of so doing. Error is assigned in the admission of this testimony. This custom was not pleaded. It was one applicable to a particular business, was not shown to have been known to the officers of defendant school district, and was not. sufficiently shown to have been such a general and wellknown custom that knowledge thereof would be presumed. It was therefore inadmissible unless pleaded. The rule and the reasons therefor are fully set out in Gilbert v. Citizens’ Nat. Bank, 61 Okla. 112, 160 Pac. 635. See, also, Smith v. Stewart, 29 Okla. 26, 116 Pac. 182, and Nippolt v. Firemen’s Fund Ins. Co., 57 Minn. 275, 59 N. W. 191.

It is also assigned as error that the evidence did not support the verdict. Inasmuch as the cause must be remanded for a new trial upon which the' evidence may be produced in a different form, we are of opinion that any present expression by us on this assignment would be dictum and improper.

The cause should be reversed and remanded for a new trial.

By the Court:’ It is so ordered.