Alberta McCoy v. Albert and Patricia Lemons

efendants 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

indemnity 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 precedential value.

Judgment affirmed pursuant to Rule 84.16(b).



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