McCoy v. Lemons

Missouri Court of Appeals

McCoy v. Lemons

794 S.W.2d 339, 1990 Mo. App. LEXIS 1256, 1990 WL 120852

CourtMissouri Court of Appeals

DecidedAugust 21, 1990

DocketNo. 56732

StatusPublished

This text of 794 S.W.2d 339 (McCoy v. Lemons) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCoy v. Lemons, 794 S.W.2d 339, 1990 Mo. App. LEXIS 1256, 1990 WL 120852 (Mo. Ct. App. 1990).

Pincite

Opinion

MEMORANDUM

PER CURIAM.

Defendants appeal from a judgment against them of $135,000 recovered by plaintiff, a tenant of defendants, who was injured when she fell from a balcony because defendants had failed to replace a handrail destroyed in a storm. In their brief defendants also seek to challenge the trial courts dismissal of their third party petition against Terra Nova Insurance Company. Their theory against Terra Nova was that its delay in payment of the claim for storm damage made it liable for [340]*340indemnity or contribution for the tenant’s injuries.

Terra Nova has filed a motion to dismiss the appeal. The notice of appeal does not identify Terra Nova as a party, there is no reference to the order dismissing the third party petition in either the notice of appeal or the motion for new trial, Terra Nova’s counsel are not listed on the notice of appeal, and neither the notice of appeal nor the motion for new trial indicate service on Terra Nova or its attorney. No appeal has been taken against Terra Nova and we have no jurisdiction over that matter.

Defendants’ only contention on their appeal of plaintiff’s judgment is that the weight of the evidence supports a finding of contributory fault by the plaintiff larger than the ten percent assessed by the jury. We do not weigh the evidence. It is the function of the jury to assess the comparative fault and we do not second guess that decision. Kramer v. Chase Resorts, Inc., 777 S.W.2d 647 (Mo.App.1989) [1-3]. The evidence was sufficient to support the verdict. An opinion would have no prece-dential value.

Judgment affirmed pursuant to Rule 84.-16(b).

Motion of Terra Nova Insurance Company, to dismiss is granted.

All concur.

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MEMORANDUM

PER CURIAM.

Defendants appeal from a judgment against them of $135,000 recovered by plaintiff, a tenant of defendants, who was injured when she fell from a balcony because defendants had failed to replace a handrail destroyed in a storm. In their brief defendants also seek to challenge the trial courts dismissal of their third party petition against Terra Nova Insurance Company. Their theory against Terra Nova was that its delay in payment of the claim for storm damage made it liable for [340]*340indemnity or contribution for the tenant’s injuries.

Terra Nova has filed a motion to dismiss the appeal. The notice of appeal does not identify Terra Nova as a party, there is no reference to the order dismissing the third party petition in either the notice of appeal or the motion for new trial, Terra Nova’s counsel are not listed on the notice of appeal, and neither the notice of appeal nor the motion for new trial indicate service on Terra Nova or its attorney. No appeal has been taken against Terra Nova and we have no jurisdiction over that matter.

Defendants’ only contention on their appeal of plaintiff’s judgment is that the weight of the evidence supports a finding of contributory fault by the plaintiff larger than the ten percent assessed by the jury. We do not weigh the evidence. It is the function of the jury to assess the comparative fault and we do not second guess that decision. Kramer v. Chase Resorts, Inc., 777 S.W.2d 647 (Mo.App.1989) [1-3]. The evidence was sufficient to support the verdict. An opinion would have no prece-dential value.

Judgment affirmed pursuant to Rule 84.-16(b).

Motion of Terra Nova Insurance Company, to dismiss is granted.

All concur.

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Bluebook (online)

794 S.W.2d 339, 1990 Mo. App. LEXIS 1256, 1990 WL 120852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccoy-v-lemons-moctapp-1990.

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