Coates v. City of Evansville, 470A59

• Decision Date: 14 October 1971
• Docket Number: No. 470A59,No. 2,470A59,2
• Citation: 273 N.E.2d 862,27 Ind.Dec. 196,149 Ind.App. 518
• Parties: Maurice COATES, Appellant, v. CITY OF EVANSVILLE, Indiana, Appellee
• Court: Indiana Appellate Court

Page 862

273 N.E.2d 862

149 Ind.App. 518

Maurice COATES, Appellant, v. CITY OF EVANSVILLE, Indiana, Appellee.

No. 470A59.

Appellate Court of Indiana, Division No. 2.

Oct. 14, 1971.

Howard P. Trockman, James F. Flynn, Evansville, Trockman, Lloyd, Flynn & Swain, Evansville, of counsel, for appellant.

Robert S. Matthews, Ronald Warrum, Jerry P. Baugh, Toby D. Shaw, Evansville, Mark P. Lockward, Princeton, for appellee.

STATON, Judge.

This is an appeal from the Gibson Circuit Court. The judgment being appealed found against the appellant-plaintiff on Both Paragraph One and Paragraph Two of his complaint which are summarized as follows:

Paragraph One sought $20,000.00 in damages for Defendant-Appellee's failure to reinstate Plaintiff-Appellant as a fireman. His conviction had been reversed by the Supreme Court on September 19, 1967, but reinstatement action was not taken until March 9, 1968.

Paragraph Two incorporated by reference much of Paragraph One and in addition sought to have restored Plaintiff-Appellant's seniority rights and certain benefits flowing therefrom.

The record of this cause discloses that Mr. Maurice Coates was first actively engaged as a fireman for the city of Evansville on November 13, 1959. He received a notice from Fire Chief Fred Hougland dated November 6, 1964 which reads as follows:

'You are hereby notified of your suspension from the Fire Department of the City of Evansville, as of this date, because of the filing of a criminal affidavit against you charging possession of stolen property.

Your suspension will be reported to the Board of Public Safety which Board will take further action thereon.'

On the same date November 6, 1964, Fire Chief Hougland sent a copy of the above notice with a covering letter to the Board of Safety which omitting the formal parts thereof reads as follows:

'I am attaching hereto copy of notice of suspension this day served upon Maurice Coates, because of the filing of an affidavit against him for possession of stolen property.

It is my recommendation that this suspension be continued until the trial of the criminal proceedings.'

Thereafter, on November 17, 1964, Maurice Coates made a written request to the Board of Safety for a six month leave of absence without pay. This request, omitting the formal parts thereof reads as follows:

'I, Maurice Coates, hereby request that I be granted a six (6) month leave of absence without pay, from my duties as a member of the Evansville Fire Department, Evansville, Indiana, said leave of absence to begin at the expiration of the twenty-nine (29) day suspension imposed upon me by Fred Hougland, Chief of the Evansville Fire Department on the 6th day of November, 1964.'

The minutes of the Board of Safety show that approval of this request was recommended by the City Attorney:

'On the recommendation of the City Attorney, and on motion duly made and unanimously carried, the Board approved the request of Maurice Coates and granted a six months leave of absence, without pay, from the Evansville Fire Department effective at the expiration of the Twenty-nine (29) day suspension imposed upon him by Fred Hougland, Chief of the Fire Department on the 6th day of November, 1964.'

Again on May 24, 1965, fireman Maurice Coates requested another leave of absence without pay for a period of ninety days, which was approved by the Board of Safety in their minutes dated May 26, 1965. This leave of absence was to commence on June 5, 1965 or upon the expiration upon the six (6) month leave of absence. It appears that this second leave of absence would have expired eleven (11) days prior to the hearing held on September 17, 1965. These eleven (11) days are not discussed by the parties and we do not know whether or not the appellant-plaintiff was absent without leave, on leave of absence without pay and that the eleven (11) days extension was granted by the Board or what status may be attributed or assigned to this period of time.

Fire chief Fred Hougland submitted charges to the Board of Safety on August 31, 1965, which were made a part of the record of the Board of Safety. These charges omitting the formal parts thereof reads as follows:

'I submit herewith charges against Fireman Maurice Coates, growing out of his conduct described as follows:

1. I charge that Fireman Maurice Coates was convicted of a criminal offense in the Circuit Court of Vanderburgh County on the 24th day of June, 1965, in violation of Section 160 of Chapter 129 of the Acts of the General Assembly of the State of Indiana, 1905, as amended (Burns' 48--6105), in this: that on or about the 24th day of June, 1965, at Evansville, Indiana, he was convicted of the crime of 'theft of stolen property."

The transcript shows the minutes of the meeting held by the Board of Public Safety on September 17, 1965. The appellant-plaintiff was represented by his attorney, Marion Rice, and the city of Evansville was represented by Jerome E. Salm. A record was made at this hearing which substantiated the charges made by the Fire Chief. The appellant-plaintiff's attorney, Marion Rice, advised the Safety Board of the status of appellant's appeal of his conviction. At this state of the proceedings, the motion for new trial had been taken under advisement by the court. The only motion or recommendation upon which may action was taken at this meeting appears on page 89 of the transcript wherein Mr. Salm states the following:

'In accordance with the procedure that was taken by the board in a similar case within the last six months, the city attorney recommends that fireman Coates be suspended without pay pending the determination of his appeal.'

Mr. Kello states:

'It's an open suspension then, in other words:

Mr. Rice replies:

'Yes, and we would join in that recommendation--we will request that the board act in compliance with the recommendation of the city attorney.

Mr. Salm states:

'I think this board will then hold another hearing after the appeal is disposed of.

Motion was carried and hearing was adjourned.'

On September 19, 1967, the Supreme Court of Indiana reversed the appellant-plaintiff's conviction in an opinion written by Chief Justice Hunter and handed down on the above mentioned date. The opinion was published on October 6, 1967 in 11 Indiana Decisions 178. The opinion was later certified to the clerk of the Vanderburgh Circuit Court on the 15th day of January, 1968. A letter dated February 15, 1968, addressed to the Board of Public Safety over the signature of Jack N. Van Stone, attorney for the appellant-plaintiff, excluding therefrom the formal parts is as follows:

'On August 31, 1965, Fred Hougland, Chief of the Fire Department brought charges against Fireman, Maurice Coates; that he was on the 24th day of June, 1965, convicted of the crime of 'theft of stolen property.'

'On September 17, 1965, the Board of Public Safety held a meeting wherein this charge was heard and wherein 'the Board continued the suspension of Fireman, Maurice Coates, without pay, pending the disposition of his appeal.'

'You are hereby notified that on the 19th day of September, 1967, the Supreme Court of the State of Indiana reversed the conviction of Maurice Coates a copy of said Opinion reversing said conviction is attached hereto and made a part hereof. That on the 16th day of January, 1968, said Opinion of the Supreme Court was certified and received by the Clerk of the Vanderburgh Circuit Court. That on the 8th day of February, 1968, John Carroll, Special Judge of the Vanderburgh Circuit Court entered an Order granting the Defendant's Motion For a Directed Verdict and discharging the said Maurice Coates, a copy of said Order is attached hereto and made a part hereof.

'Therefore, on behalf of Fireman, Maurice Coates, we respectfully request that the Board receive as a part of the record in his case the attached exhibits. That Fireman, Maurice Coates, be found not guilty of the charges brought against him on August 31, 1965 by Fred Hougland, Chief of the Fire Department, and for all other further and proper relief.'

The above letter is the first notice from the appellant-plaintiff to the Board of Safety that he desired any action taken on his reinstatement.

Thereafter, on March 5, 1968, Maurice Coates and his attorney, Jack N. Van Stone, attended a hearing of the Board of Safety where the minutes reveal that the facts set forth in the above letter were placed of record and were made a part of the minutes of the Board. After reciting substantially the context of the letter set forth above, the minutes of the Board of Safety show the following:

'After the Board members together with the City Attorney went into a short private executive session, on the recommendation of the City Attorney and on Motion duly made and unanimously carried, the Board REINSTATED MAURICE COATES TO THE EVANSVILLE FIRE DEPARTMENT, EFFECTIVE MARCH 9, 1968, noting that no back pay was being authorized during the period of suspension and the period of time during his suspension would be recorded as a 'gap' in his employment record.'

The appellant-plaintiff's only assignment of error is 'the court erred in overruling appellant's motion for a new trial.' For both legal paragraphs the motion for new trial urged the following errors.

'1. The decision of the Court is not sustained by sufficient evidence.'

'2. The decision of the court is contrary to law.'

The appellant-plaintiff's first specification of error as to both legal paragraph presents no question for review, since this is an appeal from a negative decision of the Gibson Circuit Court. Mitchell v. Lawson (1969), Ind.App., 250 N.E.2d 259, 18 Ind.Dec. 257; Mobley v. City of Evansville (1960), 130 Ind.App. 575, 167 N.E.2d 473.

Upon the second specification of error, we find that the decision of the Gibson Circuit Court must be reversed.

The appellant-plaintiff contends that the Fire Chief has no power to suspend a fireman under the statute. He further...