Devoy v. Devoy

• Decision Date: 05 November 1973
• Docket Number: No. KCD,KCD
• Citation: Devoy v. Devoy, 502 S.W.2d 428 (Mo. App. 1973)
• Parties: Jean Paul DEVOY, Appellant, v. Mary Dorothy DEVOY, Respondent. 26602.
• Court: Missouri Court of Appeals

Page 428

502 S.W.2d 428

Jean Paul DEVOY, Appellant, v. Mary Dorothy DEVOY, Respondent.

No. KCD 26602.

Missouri Court of Appeals, Kansas City District.

Nov. 5, 1973.

Motion for Rehearing and/or Transfer Denied Dec. 3, 1973.

Elwyn L. Cady, Jr., Independence, for appellant.

Lloyd A. Cleaveland, Chillicothe, Walter E. Allen, Brookfield, for respondent.

Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.

PER CURIAM:

Plaintiff sued his parents for damages sustained in the early morning of January 27, 1961 from a slip and fall on the icy front porch of their home. Plaintiff's father died during the pendency of the suit and trial was had against the mother alone. The court directed a verdict at the close of the plaintiff's case. On this appeal from the judgment, plaintiff urges, first, that a prima facie case was made: that there was substantial evidence defendant breached a duty owed plaintiff to clear the porch of an unreasonably dangerous condition of ice and snow and that the breach was the proximate cause of the injury; and, second, that the defense of contributory negligence was a question of fact for the jury, rather than for 'judicial fiat' by a directed verdict. For reasons we presently give, this appeal will be dismissed.

Rule 84.04(c) V.A.M.R. requires that the brief of an appellant present '(a) fair and concise statement of the facts relevant to the questions presented for determination without argument'. What appellant has presented to this court is a starkly reduced recitation of evidentiary facts, insufficient for a proper review of appellant's contentions of error and contrived to omit essential facts on which respondent relies. See, Carver v. M.K.T.R. Co., 362 Mo. 897, 245 S.W.2d 96, 100(1--3) (1952). Approximately fifty pages of transcript proof have been condensed into four scant paragraphs. The statement of facts, in toto, represents that:

Plaintiff was in business in Brookfield with his father and would frequently drop by his parents' home for business and social conversations (50). On the night in question he had been engaged in such conversation with his parents (54) and later that night slipped and fell on their front porch (55), being rendered unconscious and not regaining consciousness until the next morning in the hospital (55).

For a period of about 10 days before the fall there had been a condition of refreezing show and ice (56). A path had been swept on the front porch which had a refreezing condition of ice (58) about which plaintiff was generally, but not specifically, aware of at the time of the slip and fall (76).

Plaintiff sustained severe injury (61 et seq.) and required amputation of a toe (62).

Plaintiff's father, an original defendant, having died during the pendency of this suit, trial was against plaintiff's mother alone, whose motion for directed verdict at the close of plaintiff's case (97) was sustained (100). Plaintiff has perfected his appeal (101 et seq.).

This significant evidence from appellant himself, essential to a proper review of the issues, was omitted from his statement: During the ten days of refreezing snow and ice which preceded the injury, appellant had been in and out of his parents' home at least once a day. On each of these visits appellant had entered and exited over the same front porch on which he later fell. Throughout that period, he knew that the porch was slick and dangerous. There had been neither significant change in weather conditions nor in the condition of the front porch during the period of these visits. In appellant's word, 'it was a situation where you had better watch where you're stepping'. On the night of the fall, appellant had been to his parents' home on two separate occasions. His first visit was at about 7:30 P.M. when he remained about a half-hour. He left by the front door across the front porch and went home. He went to bed, got up, and returned to the home of his parents around 10:30 P.M. There was no indication as to the purpose of either visit. After his second arrival, his father went to bed, but appellant remained and talked with his mother--concerning what, we do not know--watched the late television show, then left after midnight. At his first visit that...