On petition for rehearing the respondent calls our attention to the fact that in the opinion the court failed to refer to the first and primary ground upon which the respondent relied in support of the judgment of the trial court, that "prior to the expiration of the previous insurance the defendant company had sent to the plaintiff a notice that this policy would expire, and that it was the custom between *Page 140 the companies to make annotation upon such notice if the policy was to be dropped; that no such annotation notice was placed upon the expiry notice sent out in this case."
The only testimony relied upon in support of such proposition is that of the witness Roy, who testified that the companies always send out expiration notices, and if the policy was to be dropped they mark it on the expiration notice; that he thought it was customary to do so; he could not say that such notice was sent in this particular case.
This testimony is not sufficient to support a finding, even if there had been such finding, to the effect that the company sent to the respondent a request for the renewal of the insurance, and that the renewal slip delivered was an acceptance of such request. Particularly is this so when the evidence referred to is considered in connection with the evidence of the same witness, that his company usually went around for renewals a week or ten days before a policy would expire; and that if the company would not renew the insurance because the line was full, they would place the risk with some other company.
We know that in this particular case the request claimed to be a renewal request was not delivered until the close of business hours the day before the policy expired, and therefore Roy had not followed his usual custom of going around a week or ten days before the policy expired to request a renewal. We cannot hold that because the witness Roy thought that it was customary for the companies to send out renewal notices, that this particular company in this particular case did send to this plaintiff a renewal notice.
Proof of usage or custom is admissible only as an aid or instrument tending to aid interpretation. In fact, in this case the complaint alleged, and the court found, that plaintiff notified defendant of its desire to renew, and the defendant agreed and promised to renew the policy. This appears to have been the theory upon which the case was tried. There is no allegation and no finding as to defendant's requesting and plaintiff agreeing to a renewal.
Rehearing denied.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 5, 1910. *Page 141