Opinion
No. 30,354.
Filed September 30, 1963.
1. ADMINISTRATIVE LAW AND PROCEDURE — Abuse of Inmate of School — Discharge of Employee — Assault and Battery Distinguished. — Judgment in criminal prosecution finding appellee not guilty of assault and battery is not conclusive on State Personnel Board's determination whether any grounds existed for appellee's discharge as employee of State School on grounds of "abuse of patient," an offense which does not necessarily coincide with criminal definition of assault and battery. p. 320.
2. APPEAL — Failure to File Appellee's Brief — Prima Facie Error — Reversal. — Where appellee has filed no brief the judgment appealed from may be reversed if appellant's brief makes a prima facie case of reversible error. p. 320.
From the Jennings Circuit Court, Fred S. Matthews, Judge.
Clarence Derringer, appellee, brought this action to review the action of appellant, Indiana State Personnel Board, sustaining the dismissal of appellee as an employee of appellant Muscatatuck State School. Judgment was rendered favorable to appellee and appellants appeal.
Reversed.
Edwin K. Steers, Attorney General, Robert W. McNevin, Assistant Attorney General, and Curtis S. Travis, Deputy Attorney General, for appellants.
Appellee, as an employee of the Muscatatuck State School, was charged with the abuse of an inmate of the school and discharged. He appealed to the Indiana State Personnel Board. Pending this appeal he was charged with assault and battery, based on the alleged abuse of the inmate and, after trial, was found not guilty. Thereafter the Indiana State Personnel Board rendered a decision sustaining the dismissal of the appellee. The appellee thereupon asked for a judicial review in the Jennings Circuit Court. This appeal is taken from that court's reversal of the action of the Personnel Board.
The statute relative to such reviews (Burns' § 63-3018) provides that the court shall not try or determine such cause "de novo." The court found that the action of the Indiana Personnel Board was arbitrary and capricious in its determination for the reason that the appellee had been found not guilty on the assault and battery charge.
It is urged by the appellant that the court erred in concluding that the judgment in the criminal prosecution was conclusive on the Personnel Board's jurisdiction to hear and determine whether any grounds existed for appellee's discharge. In this context, it is pointed out that "abuse of patient," defined in the statute, the basis of appellee's dismissal, does not necessarily coincide with the criminal definition of assault and battery. Burns' § 22-4237 (1962 Supp.) reads as follows:
"Any person who shall abuse, maltreat, or neglect any mentally ill person who is under the care of a psychiatric hospital shall be guilty of a misdemeanor.
. . . . .
"Abuse and maltreatment shall include but not be limited to any rude, insolent or angry touching of a patient."
The record shows there was sufficient evidence to sustain this latter offense, although the appellee may not have been guilty of assault and battery. There is no defense or plea made here 1. of justification, for example, that the acts were disciplinary in character.
The appellee has filed no brief herein. If appellant's brief makes a prima facie case of reversible error, we may reverse the judgment from which the appeal is taken. 2 I.L.E., Appeals, 2. § 394; Burk v. Anderson et al. etc. (1952), 232 Ind. 77, 109 N.E.2d 407.
We need not go into other points raised on this appeal. A prima facie showing of reversible error has been made. We are not required to search the record where the appellee is not sufficiently interested to offer us any help by submitting a brief on his side of the case.
The judgment is reversed.
Jackson, J., concurs in result.
NOTE. — Reported in 192 N.E.2d 735.