THARP v. SAN JOAQUIN COTTON OIL CO (1938)

In his petition for rehearing the appellant insists that the trial court erred in refusing his request to open the case after it was submitted, to permit him to prove that it was the custom of truck drivers delivering products to the defendants' warehouse and mill to assist defendants' employees in installing and replacing belts on the pulleys.

We are of the opinion the court did not abuse its discretion in denying the application to open the case for further evidence of an alleged prevailing custom. We are unable to see how such a custom on the part of truck drivers to volunteer their services would inure to the benefit of the appellant. There was evidence in the record that some truck drivers did assist in installing and replacing the belts. That evidence is fully considered in the opinion of this court. Moreover, it is the invariable rule that evidence of a custom which is not so general in its character that it will be presumed to have been known to the parties or of which a court will take judicial knowledge must be pleaded to warrant the acceptance of evidence of such custom. Pray v. Trower Lumber Co., 101 Cal.App. 482, 489, 281 P. 1036; 25 Cal.Jur. 422, sec. 8; 17 C.J. 516, sec. 80; 27 R.C.L. 195, sec. 40. The appellant failed to plead the custom, the proof of which he sought to introduce.

The other issues on appeal are adequately covered by the opinion.

The petition for a rehearing is, therefore, denied.

PER CURIAM.