Cope v. McClain

• Decision Date: 05 August 1975
• Docket Number: No. 35945,35945
• Citation: Cope v. McClain, 529 S.W.2d 6 (Mo. App. 1975)
• Parties: Terzah Irene COPE and William H. Cope, Plaintiffs-Appellants, v. Jack McCLAIN, also known as Earl Jackson McClain, Defendant-Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 6

529 S.W.2d 6

Terzah Irene COPE and William H. Cope, Plaintiffs-Appellants, v. Jack McCLAIN, also known as Earl Jackson McClain Defendant-Respondent.

No. 35945.

Missouri Court of Appeals, St. Louis District, Division Two.

Aug. 5, 1975.

Motion for Rehearing or Transfer Denied Oct. 22, 1975.

Henry Gerhardt, Bruer & Rollings, St. Charles, for plaintiff-appellant.

Robert E. Morley, O'Fallon, for defendant-respondent.

PER CURIAM.

This is an action for damages by Terzah Cope and William H. Cope, her husband, for injuries and damages sustained as the result of an alleged battery on Terzah Cope by Jack McClain, her brother. There was a jury verdict for the defendant from which Terzah Cope and William H. Cope appeal. We regret, that we must once again, dismiss an appeal.

Plaintiff's first point reads:

'The trial court erred in giving instruction No. 4, the defendant-respondent's self defense instruction for the reason that there was no substantial evidence to support such a self defense instruction.'

Rule 84.04(d) requires that 'the points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . .' As far back as 1957 an assignment of error almost verbatim to the one above stated was held not to be in compliance because it fails to specify and designate wherein and in what respects the instruction is not supported by the evidence. Lewis v. Watkins, 297 S.W.2d 595 (Mo.App.1957).

Appellant is also derelict in the preparation of his brief in failing to self out in full the instruction which he seeks the court to review, in violation of Rule 84.04(e) which provides . . . '. . . If a point relates to the giving, refusal, or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief . . .' Failure to comply with this Rule requires that this point not be considered. Bohning v. Hegerfeld, 488 S.W.2d 297 (Mo.App.1972).

The only other assignment is:

'The trial court erred and abused its discretion in failing to grant plaintiffs-appellants a new trial for the reason that the verdict was against the greater weight of the evidence. The verdict is against the law, against the evidence and against the laws applied to the evidence, because there is no substantial evidence to support the verdict.'

Such an assignment presents nothing for our review, State v. Jackson, 477 S.W.2d 47, 53 (Mo.1972); Lewis v. Watkins, supra. In fact when one says that the verdict is against the greater weight of the evidence it implies that there is some evidence to support the verdict. Nutz v. Shepherd, 490 S.W.2d 366, 369 (Mo.App.1973). To then say that the reason that the verdict is against the weight of the evidence is because there is no substantial evidence to support the verdict is a contradiction in terms.

What was said by Judge Lamm in Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668, 670 (1908) bears repeating at this time:

'The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the...