Opinion
No. 5-447 / 04-1462
Filed November 9, 2005
Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.
Plaintiffs appeal from an adverse verdict in their dram shop action. AFFIRMED.
Alan E. Fredregill, Rosalynd J. Koob, and Joel D. Vos of Heidman, Redmond, Fredregill, Plaza, Dykstra Prahl, L.L.P., Sioux City, for appellants.
Thomas M. Braddy and Doug Kluender of Locher, Cellilli, Pavelka Dostal, L.L.C., Omaha, Nebraska, for appellee.
Heard by Sackett, C.J., and Mahan and Miller, JJ.
Plaintiffs, the husband and children of a woman killed in a head-on collision with an intoxicated driver, appeal from an adverse jury verdict in their dram shop action against a liquor licensee that allegedly "sold and served" alcohol to the driver after he was intoxicated. Plaintiffs contend the district court erred (1) in refusing to give their requested jury instruction on "sold and served," (2) in giving conflicting instructions on admissions and prior inconsistent statements, (3) in improperly admitting certain evidence, and (4) in refusing to grant their motions for judgment notwithstanding the verdict (JNOV) and new trial. We affirm.
Background facts and proceedings.
On March 29, 2000, Sheila Vaughn died after her car was struck head-on in her lane by a car driven by Anthony Murphy. Anthony and his brother Joseph, a passenger in the car, were also killed as a result of the collision. The Murphy car was going west in the eastbound lane on highway 20 east of Sioux City. The collision occurred at the crest of a hill about two miles west of the defendant, Theo's Steak House and Lounge (Theo's) in Lawton. An autopsy revealed Anthony Murphy's blood alcohol content at the time of the collision was 0.232. The police, after an investigation, were unable to track the movement of the Murphy brothers in the hours before the accident. Among the items found in the Murphy car after the accident were two bottles of beer in the shape of bowling pins. One was partially full, the other was broken.
At the time of the incident, a person was considered under the influence if their BAC was 0.10 or greater. See Iowa Code § 321J.2 (1999).
Vaughn's husband and children filed a dram shop action against Theo's, alleging Theo's employees sold and served alcohol to Murphy when they knew or should have known he was intoxicated. Theo's raised defenses that either the Murphys were never at Theo's that evening or they were not served alcohol while they were intoxicated. At trial, there was conflicting evidence on where the Murphy brothers had been that evening. A young couple testified they were in the bar at Theo's that evening and two men were sitting at the bar. One observed the men with "beverages" and being loud. After seeing the obituary pictures of the Murphy brothers in the newspaper, both witnesses said the men they saw at the bar that night were the Murphy brothers. Other testimony identified the two men at the bar as the Mrla brothers. The Mrlas also testified they were at the bar that night and were the men the young couple saw. A bar owner in Bronson said the Murphy brothers were in the parking lot of her bar in Bronson about 10:15 p.m. and Anthony asked her for directions "back to Salix."
The jury unanimously returned a simple verdict form stating, "We, the Jury, find in favor of the Defendant and against the Plaintiffs." The plaintiffs filed motions for JNOV and new trial, which were resisted by the defendant. The trial court denied both motions. Additional facts will be presented as they relate to the discussion of the plaintiffs' claims on appeal.
Discussion.
1. Jury instruction on "sold and served."
In order to prevail in a dram shop action, one of the elements a plaintiff must prove is that the defendant "sold and served" the intoxicated person. See Iowa Code § 123.92 (2003). Section 232.110 provides that proof of payment is not necessary to prove a sale. Id. § 232.110. The trial court instructed the jury on the necessary elements the plaintiffs had to prove in instruction fourteen:
1. Theo's, Inc. was licensed by the State of Iowa to sell beer, wine or liquor.
2. Theo's, Inc.'s employees sold and served beer, wine and/or liquor to Anthony Murphy when they knew or should have known he was intoxicated.
3. The plaintiffs were injured in person, property, and means of support by Anthony Murphy while he was intoxicated.
4. The nature and extent of the damage.
The instruction included language that Theo's admitted elements one and three. The plaintiffs requested that the court give the jury an explanatory instruction on the element two that would have explained, in pertinent part:
Plaintiffs need not prove by direct evidence that Theo's, Inc. sold and served the Murphy brothers on the night Sheila Vaughn was killed. That proof can come from circumstantial evidence.
The sold and served element may be established by proof that the licensee sells alcoholic beverages and generally holds itself out as a place where patrons are served. Plaintiffs do not need to prove that the Murphy brothers actually consumed Theo's alcohol.
The district court refused to give the instruction.
On appeal, the plaintiffs contend the court erred in refusing to give the instruction, claiming it is a correct statement of Iowa law and the prejudice resulting from not giving the instruction requires a new trial. We review the failure to give a requested instruction for an abuse of discretion. State v. Selestan, 515 N.W.2d 356, 358 (Iowa Ct.App. 1994). "It is well settled that a trial court need not instruct in a particular way so long as the subject of the applicable law is correctly covered when all the instructions are read together." State v. Uthe, 542 N.W.2d 810, 815 (Iowa 1996) (citing State v. Monk, 514 N.W.2d 448, 450-51 (Iowa 1994)). Any error in jury instructions must be prejudicial to warrant reversal. State v. Webb, 516 N.W.2d 824, 831 (Iowa 1994).
The plaintiffs argue their proposed instruction on "sold and served" is necessary because the statutory language has acquired a "peculiar and appropriate meaning in law" through judicial construction. They contend the proposed instruction defined a "critical term" essential for their case. See Hobbiebrunken v. G S Enters., Inc., 470 N.W.2d 19, 21 (Iowa 1991) ("It is reversible error for a court to refuse to give a requested instruction that defines a critical term necessary for resolution of the case."). The supreme court addressed the statutory language in Smith v. Shagnasty's, Inc., 688 N.W.2d 67, 73-74 (Iowa 2004):
One can also legitimately infer Shagnasty's "sold and served" beer to Doe. Doe was holding a beer in a bar that sold beer. That Smith has not mustered any direct evidence that a particular Shagnasty's employee served Doe this beer is not fatal to her claim. A plaintiff need not produce the actual server or servers of the alcohol in order to prove a dram shop claim. Circumstantial evidence is equally probative as direct evidence.
A plaintiff may meet [the "sold and served" requirement with proof] that an establishment where alcohol is sold generally holds itself out as a place where persons are "served" in the ordinary sense of the word, i.e., one providing premises where orders are taken, patrons are waited on, and drinks are supplied in open containers.
Id. (citations omitted). The plaintiffs contend the second paragraph supports their requested instruction. They also contend that, without the requested instruction, the jury could have believed it necessary to produce the server and proof of the sale in order to prove element two of instruction fourteen. The defendant contends giving the proposed instruction would have expanded current law beyond a reasonable, logical construction of the statute. It contends Smith v. Shagnasty's does not stand for the plaintiffs' proposition. It also contends the instructions the court gave, read together, adequately explain the law, so the court did not abuse its discretion in refusing to give the proposed instruction.
The plaintiffs are taking the quoted language out of context and misreading it in suggesting one only need prove a tavern is a tavern in order to satisfy the sold and served requirement. Although one need not bring in the servers or show proof of payment, we do not read Shagnasty's so broadly that one need not show the intoxicated person actually possessed a drink or obtained it in the tavern. In Shagnasty's, there was evidence the intoxicated person was in the bar with a drink in hand. The plaintiffs' proposed instruction would not require such evidence. In Horak v. Argosy Gaming Co., 648 N.W.2d 137, 143 (Iowa 2002), there also was evidence the intoxicated person obtained drinks from employees and drank them. Id. The court determined it was not necessary to produce the server or receipts, but that it was sufficient to show the defendant sold liquor and held itself out as a place serving liquor, when considering the other circumstantial evidence the intoxicated person was sold and served.
We conclude the district court did not abuse its discretion in refusing to give the proposed instruction defining "sold and served." The proposed instruction would have been an incorrect statement of the law. It also lacked specificity in not requiring proof that Anthony Murphy, the driver, was sold and served. By using the more general term, "Murphy brothers," the instruction could have allowed the jury to find for the plaintiffs even if the evidence only showed Theo's sold and served alcohol to Joseph Murphy.
2. Jury instructions on prior statements.
The plaintiffs next contend the court erred in giving jury instructions that could be in conflict and confuse the jury. In instructions ten through twelve, the court gave Iowa Uniform Civil Jury Instructions 100.13 (contradictory statement, non-party, witness not under oath), 100.14 (contradictory statement, non-party, witness under oath), and 100.15 (statements by a party opponent). However, instead of filling in the blanks with the names of witnesses or parties, as in the stock instructions, the court used the generic terms "a witness" or "a party." The plaintiffs contend this left the jury to speculate which witnesses or parties were implicated and to be confused about which persons were parties or merely witnesses. Because different hearsay rules apply to out-of-court statements by witnesses than by parties, the plaintiffs argue they were prejudiced by the possible jury confusion.
The defendant contends the pattern instructions were sufficient as given because they were not confusing and did not lead to speculation when read together with the other instructions. In particular, the defendant points to instruction thirteen, which basically states Theo's only can act through natural persons who are its employees or agents, but it is responsible for their actions within the scope of their employment or duties. It also argues inserting names of witnesses in the challenged instructions would have unduly emphasized the inconsistent statements of some witnesses and unfairly prejudiced the defendant.
Instruction No. 13 provided:
Theo's Inc. can act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind Theo's Inc. by the acts and declarations made while acting within the scope of the authority delegated to the employee by Theo's Inc., or within the scope of the employee's or agent's duties as an employee or agent of Theo's Inc. In this case, the staff of Theo's Inc. were employees of Theo's Inc., acting within the scope of their employment. Therefore, Theo's Inc. is responsible for the actions of its staff.
The plaintiffs contend the testimony about statements made by Theo's bartender, in particular, were critical admissions against Theo's for their case. They argue the lack of specificity in instructions ten through twelve could have allowed the jury to conclude "it was precluded from finding that [the bartender's] statements were proof of the matter asserted." Plaintiffs argue they were unfairly prejudiced by this restriction on the use of the evidence. Moreover, the plaintiffs argue the general verdict form used by the jury make it impossible for the reviewing court to determine which of the confusing instructions the jury followed, thus necessitating a new trial. See Gordon v. Noel, 356 N.W.2d 559, 565 (Iowa 1984) ("Our rule requiring reversal in this situation is consistent with the rule applied when a jury receives inconsistent instructions, one of which is correct and the other not. In those cases, because it is impossible to tell from a general verdict which instruction the jury followed, reversal is required.").
Trial courts are not bound by the uniform jury instructions. See State v. Harrington, 284 N.W.2d 244, 250 (Iowa 1979). Nevertheless, we generally prefer the uniform instructions be followed by trial courts. See State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987). Furthermore, an instruction should not unduly emphasize specific evidence. The "proper practice is to give a general instruction . . . applicable to all witnesses alike." State v. Milliken, 204 N.W.2d 594, 596 (Iowa 1973).
We conclude the plaintiffs have not demonstrated the prejudice necessary to require a new trial. The cases the plaintiffs cite relate to inconsistent or incorrect jury instructions. The instructions given in this case, however, were neither incorrect nor inconsistent. There is no showing the jury was confused by the instructions.
3. Admission of improper evidence. Bowling pin beer bottles.
The plaintiffs contend the court erred in admitting hearsay evidence concerning the origin and place of sale of the two bowling pin shaped beer bottles found in the Murphys' car. When one officer testified he traced the number on the bottle through the distributor and was told the beer went to the bowling alley in Sergeant Bluff, the plaintiffs' hearsay objection was sustained (but they did not ask that the testimony be stricken from the record). When the office was asked later about the origin of the beer bottles, he was allowed to testify over the hearsay objection of the plaintiffs.
The defendant claims the testimony was not hearsay and, in any event, the plaintiffs were not prejudiced because it contends substantially the same evidence was in the record elsewhere without objection. Vasconez v. Mills, 651 N.W.2d 48, 57 (Iowa 2002); see State v. Wells, 437 N.W.2d 575, 578 (Iowa 1989). The defendant points to testimony from the officers about the beer bottles as they were discovered in the Murphys' car — that they were shaped like bowling pins, were cold, were partially consumed, and were spilled or broken in the car. The defendant argues this testimony strongly implies the Murphys obtained alcoholic beverages someplace other than Theo's on the night in question.
The officer's testimony concerning what the distributor told him was hearsay and not subject to any of the exceptions to the rule. See Iowa Rs. Evid. 5.801-02. "Prejudice is presumed in cases in which hearsay testimony is improperly offered unless it is affirmatively established that the opponent of the proffered testimony has suffered no prejudice." Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa 2002).
We conclude other evidence admitted without objection could allow the jury to infer the Murphys obtained the beer someplace other than Theo's. Consequently, the plaintiffs suffered no prejudice from the officer's testimony.
Police officer "opinion" testimony.
The plaintiffs contend the court erred in allowing police officers to testify they found nothing in their investigation that placed the Murphy brothers at Theo's the night of the incident, because witnesses "are not allowed to offer an opinion either directly or indirectly that essentially expresses an opinion on guilt or innocence." See, e.g., State v. Myers, 382 N.W.2d 91, 97-98 (Iowa 1986).
The defendant contends the plaintiffs did not preserve error because the testimony was offered without objection or motion to strike. See State v. Farnum, 554 N.W.2d 716, 719 (Iowa Ct.App. 1996) (noting failure to object or move to strike when the grounds first exist precludes asserting error on appeal). The defendant also contends the testimony of the officers was factual, not opinion. A review of the transcript reveals the officers testified they found no evidence placing the Murphy brothers at Theo's that night. They did not express an opinion the brothers were not at Theo's. Their testimony was a statement of the evidence, or lack of evidence, that the brothers were at Theo's that night.
Concerning preservation of error, the "opinion" testimony of the officers was cited in the plaintiffs' motion in limine. That is sufficient to preserve error. The testimony, however, was factual, not opinion, so the plaintiff's argument is without merit.
Character evidence.
The plaintiffs offered the testimony of a former waitress from Theo's. She testified concerning statements made by the bartender that the Murphy brothers were at Theo's on the night in question. She also testified concerning the reasons she no longer worked at Theo's. The defendant offered testimony from five witnesses concerning other and additional reasons why she no longer worked at Theo's — including various allegations of stealing food, falsifying guest receipts, and misappropriation of discounts. The plaintiffs contend the testimony was improper character assassination. See Iowa R. Evid. 5.608 (prohibiting evidence of specific instances of conduct except to show truthfulness or untruthfulness, but then only through cross-examination of the witness). The plaintiffs claim the testimony prejudiced them because the waitress was never given the opportunity to admit or deny the accusations.
The defendant first contends error was not preserved because the objections raised at trial were hearsay, speculation, and foundation, but not improper character evidence, the ground raised on appeal. See Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 633, 638 (Iowa 1998). However, evidentiary objections are an exception to this rule.
Notwithstanding our error preservation requirement, we have consistently applied an exception to it. That exception applies to evidentiary rulings, whether the error claimed involved rulings admitting evidence or not admitting evidence.
DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002). We may sustain the district court's exclusion or admission of evidence an any ground, "even though not urged in the objections." Aller v. Rodgers Mach. Mfg. Co., 268 N.W.2d 830, 840 (Iowa 1978).
The waitress's testimony mainly concerned an admission against interest by the bartender at Theo's, who, she claims, told her the Murphy brothers were at Theo's the night of the incident. She was allowed to testify concerning the admission, so the evidence was before the jury. The challenged character evidence against her goes to her credibility and the weight the jury would give to her testimony. The jury also had before it the testimony of the Mrla brothers that they were in the bar at Theo's, sitting in the place witnesses said they saw two men sitting, and the testimony of investigating officers who found no evidence the Murphy brothers were at Theo's that night. Even if the challenged character evidence had been excluded, the jury had sufficient evidence to support its finding. We do not find prejudice from the admission of the challenged testimony.
Atmosphere at Theo's.
Plaintiffs contend three employees of Theo's implied in their testimony that it was unusual to see intoxicated persons at the bar, so the Murphy brothers, if there and intoxicated as claimed, would have stood out and been memorable. However, the testimony of Theo's employees dealt with the events on the evening in question. They all testified it was a quiet evening and they did not see the Murphy brothers in the bar that evening. The plaintiffs attempted to offer testimony of other employees and to cross-examine the three employees, but were restricted by the court, both in its ruling on the motions in limine and its rulings on objections at trial. They contend on appeal that they were denied a fair trial because the jury did not have this evidence to consider when weighing the credibility of the witnesses.
The defendant responds that it was very careful not to open the door to such testimony by restricting its questions only to the night of the incident. Rebuttal testimony about other dates or testimony about the "atmosphere" at Theo's was restricted by the court's ruling on the motions in limine and its rulings on objections at trial.
The plaintiffs neither argue nor cite any legal authority in support of this claim. We deem it waived. Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
4. Motion for new trial.
The plaintiffs argue the district court erred in not granting their motion for new trial. We review the trial court's denial of a motion for new trial based on the grounds asserted in the motion. Iowa R. App. P. 6.4; Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999). ("[I]f the motion is based on a legal question, our review is on error," but if "the motion is based on a discretionary ground, we review it for an abuse of discretion.")
In reviewing discretionary matters, we give significant deference to the district court's decision whether or not to grant the motion. Condon Auto Sales Serv., Inc. v. Crick, 604 N.W.2d 587, 594 (Iowa 1999). The district court's decision must not be arbitrary and "must have some support in the record." Id. Ultimately, "we are reluctant to interfere with a jury verdict" or the district court's consideration of a motion for new trial made in response to the verdict. Id.
The plaintiffs contend a new trial is appropriate if the verdict is not supported by the evidence or is contrary to law. See Iowa R. Civ. P. 1.1004. They contend the "great weight of the evidence established that the Murphy brothers were sold and served alcoholic beverages at Theo's while they were intoxicated" on the night of the incident. They argue there was "more than sufficient evidence presented for the jury to support such a conclusion." They further argue the "accumulation of factors" of the errors claimed on appeal materially affected their rights and prevented a fair trial.
The defendant contends the plaintiffs did not preserve error and make too general a claim to address on appellate review. It also argues "sufficient evidence was presented to support the jury verdict."
The district court correctly analyzed and carefully addressed each claim the plaintiffs raised in their motion for new trial. We determine there are no legal errors in the district court's ruling. Our analysis of the individual claims above concludes the court did not err in its jury instructions or evidentiary rulings. Its ruling on the motion for new trial correctly upheld its instructions and evidentiary rulings. The final question is whether the verdict was supported by sufficient evidence. "Our only inquiry . . . is to determine whether there is sufficient evidence to justify submitting the case to the jury." Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). "[W]e view the evidence in the light most favorable to the party against whom the motion was made, taking into consideration every legitimate inference that may fairly and reasonably be made." Id. "When evidence is in conflict, `we entrust the weighing of testimony and decisions about the credibility of witnesses to the jury.'" Seastrom v. Farm Bureau Life Ins. Co., 601 N.W.2d 339, 346 (Iowa 1999) (quoting Biddle v. Sartori Mem'l Hosp., 518 N.W.2d 795, 800 (Iowa 1994)). The plaintiffs presented evidence of other customers at Theo's who believed they saw the Murphy brothers that night and the purported admission of the bartender. Other customers testified they did not see the Murphy brothers there. There was evidence two other brothers, the Mrlas, were there instead. There also was evidence the Murphy brothers were in another nearby town just prior to the accident. The evidence before the jury was in conflict. The question is not whether the evidence could support a different decision than the jury made, but whether or not it supports the decision made. We conclude sufficient evidence supports the jury's verdict. The district court did not abuse its discretion in denying the plaintiffs' motion for new trial.