Cook v. Clinkenbeard
| Decision Date | 25 June 1974 |
| Docket Number | No. 46410,46410 |
| Citation | 524 P.2d 27 |
| Parties | Joseph E. COOK, Jr., Petitioner, v. Rex L. CLINKENBEARD, Respondent, Mid-Continent Casualty Company, Insurance Carrier. |
| Court | Oklahoma Supreme Court |
John W. Taber, Chandler, for petitioner.
Ogden, Ogden, Board & Lee by Jim W. Lee, Guymon, for respondent and insurance carrier.
Petitioner (claimant), seeks review of an order denying his claim for compensation for the stated reason he failed to give 'either statutory written notice or actual notice' within 30 days of the alleged injury.
Claim for compensation was filed November 12, 1971, alleging accidental injury on August 26, 1971, while working as a machinist for respondent in covered employment. On December 10, 1971, respondent filed answer denying occurrence of accidental injury or resulting disability. The case was heard April 4, 1972, on the issue of claimant's entitlement to temporary compensation and medical expense.
There was lengthy evidentiary presentation, particularly as concerned facts of injury and subsequent medical treatment. While describing work activity and injury claimant stated respondent was present when injury occurred and inquired concerning claimant's need for medical assistance. From this point in the proceedings the parties delved into extent of respondent's knowledge and information of accidental injury and ensuing medical problems at length. Upon conclusion of testimony on April 4, 1972, the case was continued in order that each party could perfect the medical evidence.
On April 5, 1972, the trial judge granted respondent's leave to file amended answer. This record contains no showing, whatsoever, that prior to April 5, 1972, there was any agreement, request for, or authority granted for the amended answer. This pleading adopted defense presented originally, but further denied claimant gave statutory or 'actual notice', and affirmatively alleged failure to give statutory written notice had resulted in prejudice to respondent. Thereafter the medical evidence was furnished.
December 8, 1972, the trial judge entered an order finding claimant had sustained accidental personal injury as alleged, but denied the claim upon ground of failure of notice. This order was affirmed by State Industrial Court on en banc appeal.
The decisive question on review concerns propriety of the order, based upon specific finding concerning failure of notice, in view of this record. Respondent defends correctness of the order under claim the amended answer filed out of time sufficiently presented issue of claimant's failure to give statutory written notice. Purported authority for this contention rests upon decisions in Atkins v. Colonial Baking Co., Okl., 287 P.2d 450; Dye v. Ed Johnson Grain Co., Okl., 319 P.2d 1004, and Jones v. Cale, Okl., 467 P.2d 492.
These decisions are not authority for respondent's argument. Each case involved the failure to file an answer within 10 days as required, and we approved the State Industrial Court's relaxation of its own rules to permit inclusion of a defense permissible in the first instance. Inapplicability of this principle to the problem presented by this review is apparent.
The real question presented concerns the correctness of procedure involved in allowing an amended answer after the close of an evidentiary hearing, which advanced a defense required to be asserted affirmatively.
Claimant's principal contention insists failure to give statutory notice required by the Act (85 O.S.1971 § 24) must be affirmatively alleged or same is waived. Recognition of the arguments based upon matters reflected by this record provoke two inquiries. The first concerns effect of respondent's failure to allege failure of written notice as required by State Industrial Court Rule 10, and decisional law applicable to this failure. The second involves propriety of allowing amendment of pleadings to correct this deficiency after hearing the cause.
In Woods v. Okla. Osteopathic Hospital, Okl., 512 P.2d 135, we reiterated the notice provision of § 24, supra, is not jurisdictional. For this reason failure to give written notice cannot be asserted as a defense when this question has not been placed in issue. State Industrial Court Rule 10 clearly requires assertion of any defensive matter, other than nature and extent of...
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Roth v. Mercy Health Ctr. Inc.
...given when justice requires. Prough v. Edinger, Inc., 1993 OK 130, ¶ 8, 862 P.2d 71, 75 (citing Cook v. Clinkenbeard, 1974 OK 82, ¶ 13, 524 P.2d 27, 29); Marshall v. Allstate Ins. Co., 1990 OK CIV APP 100, ¶ 9, 805 P.2d 689, 691. Therefore, this Court will reverse a trial court's order for ......
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Prough v. Edinger, Inc., 79368
...12 Of course, the trial court has always possessed discretion over whether to allow an amendment to a pleading. Cook v. Clinkenbeard, 524 P.2d 27, 29 (Okla.1974). Its decision will not be overturned absent an abuse of that discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S.......
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Beyale v. Arizona Public Service Co.
...plaintiff must prove notice if placed in issue, defendant had the obligation to raise the issue initially. Accord Cook v. Clinkenbeard, 524 P.2d 27 (Okla.1974). In this respect, notice is an affirmative defense. See Gallegos v. George A. Rutherford, Inc., 67 N.M. 459, 357 P.2d 50 This appea......
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Shaffer v. Jones
...145 P.2d 387, 389 (1943). Finally, it is discretionary with the court whether to allow amendments. 12 O.S.1981 § 317; Cook v. Clinkenbeard, Okl., 524 P.2d 27 (1974). Client filed four amended petitions. In at least one instance, he repeated the same mistake he made in prior amendments. In h......