Shepherd v. City of Omaha, 40034

• Decision Date: 11 December 1975
• Docket Number: No. 40034,40034
• Parties: Roger S. SHEPHERD, Appellant, v. CITY OF OMAHA, a Metropolitan City, et al., Appellees.
• Court: Nebraska Supreme Court

Page 873

235 N.W.2d 873

194 Neb. 813

Roger S. SHEPHERD, Appellant, v. CITY OF OMAHA, a Metropolitan City, et al., Appellees.

No. 40034.

Supreme Court of Nebraska.

Dec. 11, 1975.

Syllabus by the Court

1. Where it appears in an error proceeding that an administrative tribunal has

acted within its jurisdiction and for that type of proceeding some competent evidence sustains its findings and order, the order of the administrative agency will be affirmed.

2. 'Competent evidence' means evidence that tends to establish the fact in issue. Or, stated otherwise, evidence that is admissible and relevant on the point in issue.

Thomas F. Dowd, Corrigan, Dowd & Naviaux, Omaha, for appellant.

Herbert M. Fitle, City Atty., James E. Fellows, Asst. City Atty., Omaha, for appellees.

Heard before SPENCER, NEWTON and CLINTON, JJ., and HENDRIX and BUCKLEY, District Judges.

SPENCER, Justice.

Roger S. Shepherd appeals from the judgment of the District Court affirming the action of the Omaha city personnel board in approving his dismissal from the police department. The question presented is whether or not there is competent evidence in the record to support the finding that Shepherd committed fraud in answering a question as to physical defects or disability on his employment application. We reverse.

In May of 1968, Shepherd was involved in an automobile accident in which he sustained an injury to his back. In July of 1968, Dr. David W. Minard performed a partial hemilaminectomy and a herniated intervertebral disc was removed. Shepherd continued to improve but was still in pain for several weeks. He was directed to continue wearing lumbosacral support. In December of 1968, Shepherd was discharged from Dr. Minard's care.

Shepherd settled a civil lawsuit in connection with the injuries sustained in the accident for $8,000. His special damages were approximately $4,000. His testimony was that he had been advised by his attorney that his attending physician felt there was no permanent disability.

In November 1969, Shepherd completed an application for employment with the city of Omaha. At that time he was employed as a grocery clerk with Hinky Dinky stores where his duties included unloading trucks, stocking shelves, and carrying out groceries for customers. Although these duties were of a strenuous and exertive nature, he testified that he experienced no pain, discomfort, or limitation of motion in his back while so employed.

Question No. 24 of the city's employment application form read: 'Do you have any physical defects or disability?' Shepherd responded in the negative. Following the completion of this application form, Shepherd took a civil service test, a physical fitness test, a psychiatric test, and a physical examination, all of which he successfully completed. The physical examination involved his stripping down to his shorts. The examining doctor tapped on his back, which had a 4-inch scar from the laminectomy. No questions were asked relative to the scar. He was hired as a policeman on March 1, 1970.

In January of 1972, Shepherd was again treated by Dr. Minard for back pain. Shepherd's evidence indicated that his injury resulted from his jumping out of his cruiser while on duty on the early morning of January 19. The city introduced evidence that Shepherd had in fact visited Dr. Minard on the 18th of January, prior to the report of injury on duty. Shepherd subsequently returned to his duties as a policeman.

In December of 1973, while on duty, Shepherd sustained an injury to his back as a result of a fall. He was off duty for this injury but returned to duty when he obtained a release from his physician. In February of 1974, Shepherd again sustained an injury to his back in an off-duty automobile collision. Shepherd returned to work March 29, 1974. On April 23, 1974, Shepherd reported sick. He stated that the back problems were worse and he would possibly be off for 30 days or more. On May 2, 1974, Shepherd advised the police department that he was in Immanuel Hospital and was to have back surgery that day. He was not released from Dr. Minard's care to return to work until August 5, 1974.

By a letter dated July 15, 1974, Shepherd was informed that his services were being terminated, effective August 1, 1974. The reason given for this action was that he had committed fraud or misrepresentation in his answer to question No. 24 on his original employment application. Shepherd contends the District Court erred in finding the existence of competent evidence to support the personnel board's finding that he committed fraud or misrepresentation in his answer.

It is well settled in Nebraska that where it appears in an error proceeding that an administrative tribunal has acted within its jurisdiction and for that type of proceeding some competent evidence sustains its findings and order, the order of the administrative agency will be affirmed. Tinsley v. City of Omaha (1973), 190 Neb. 380, 208 N.W.2d 693.

The District Court, in affirming the finding of...