This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS
C3-97-1054
C3-97-1149

Donald Wagener, individually and as
Trustee for the Heirs and Next-of-Kin
of Rachel Wagener,
Respondent,

vs.

Western National Mutual Insurance Co.,
Appellant (C3-97-1054),
Respondent (C3-97-1149),

Chadwyk Linder, et al.,
Defendants (C3-97-1054),

Chadwyk Linder,
Appellant (C3-97-1149),

The City of Watertown,
d/b/a Watertown Municipal Liquor Store,
Defendant (C3-97-1149).

Filed February 10, 1998
Affirmed
Forsberg, Judge *

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

Carver County District Court

File No. C1951091

Erik T. Salveson, Kacy C. Kleinhans, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

James T. Martin, Dan T. Ryerson, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue South, Suite 444, Edina MN 55435 (for appellant Western National Mutual Insurance Co.)

William M. Hart, Katherine A. McBride, Thomas A. Crouch, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant Chadwyk Linder)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

U N P U B L I S H E D O P I N I O N

FORSBERG, Judge

In this wrongful death action appellants Western National Mutual Insurance Co. (Western) and Chadwyk Linder appeal a jury verdict in favor of respondent Donald Wagener. Western and Linder argue that several trial court errors necessitate either a new trial or other remedies. We affirm.

FACTS

Rachel Wagener was killed when the truck she was riding in, driven by Linder, overturned. Linder, whose blood alcohol level was at least .18 at the time of the accident, was subsequently convicted of criminal vehicular homicide. At the civil trial which produced this verdict he stipulated that his negligence caused Wagener's death.

Before the accident, Linder and Wagener had been drinking at a party where many guests, including themselves, were minors. Chad Brueggemeier, another minor, obtained beer for the party by going to the Watertown Municipal Liquor store (Watertown) with his friend Russ Scherber, who was of legal drinking age. Scherber agreed to order and purchase two kegs of beer for the party. When Scherber discovered that he did not have enough money to pay for the beer, Brueggemeier appeared in the store. Brueggemeier wrote a check for the full purchase price and handed it to the clerk. She did not verify Brueggemeier's age before delivering the two kegs to his truck. Brueggemeier then delivered the beer to the host of the party.

After the guests at the party finished one keg of beer, Brueggemeier invited several guests to his house to drink the second keg. The partygoers then formed a caravan of several vehicles to make the trip to Brueggemeier's house. Wagener rode with Linder because she did not want to drive after drinking. William Coppin, another partygoer, was attempting to pass Linder's truck when he saw the headlights of an oncoming car, slammed on his brakes, and veered back into the right hand lane. At the same time, Linder lost control of his truck, which flipped over several times before coming to rest in a muddy field. Wagener was killed in the accident.

Linder was subsequently sued by respondent, decedent's father, in a wrongful death action. The father also filed suit against Watertown for selling the beer consumed at the party. Subsequently, Wagener's own underinsured motorist carrier, Western, was joined as a defendant. Wagener won a $450,000 award after a jury trial. Linder and Western now appeal.

D E C I S I O N

I.

Western asserts the trial court abused its discretion by refusing to allow Linder to join Coppin as a third-party defendant. A trial court has broad discretion in deciding whether to allow the joinder of additional parties to an action. Grothe v. Shaffer, 305 Minn. 17, 25, 232 N.W.2d 227, 233 (1975). Joinder of third-party defendants under Minn. R. Civ. P. 14.01 is permissive, not mandatory. Id. at 25, 232 N.W.2d at 232. The supreme court has held that the rule "merely permits joinder; it does not necessarily create a substantive right to implead another party." Id. Finally, "[t]he purpose of [rule 14.01] is * * * preventing a multiplicity of suits. This is a rule of procedure and does not create any substantive right." Id. (quoting Koenigs v. Travis, 246 Minn. 466, 469, 75 N.W.2d 478, 481 (1956)).

Minnesota law is clear that joinder is permissive, not mandatory, and is subject to the broad discretion of the trial court. The trial court did not abuse its discretion by refusing to allow Linder to join Coppin as a third-party defendant.

II.

Appellants argue that the trial court erred by refusing to include Coppin on the jury's special verdict form among those to whom the jury could potentially apportion fault for the accident. A trial court has broad discretion in deciding what special verdict questions to submit to the jury. Dang v. St. Paul Ramsey Med. Ctr., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). The trial court rejected a new trial motion on this issue, holding that there was "no evidence that anyone other than Linder caused the accident or was at fault in any way."

At trial, Linder admitted responsibility for the accident. An accident reconstruction specialist testified that there was no evidence that any vehicle, including Coppin's, forced Linder off the road or contributed to the accident. There was no evidence that Coppin caused the accident, while there was persuasive evidence that Linder was the sole cause of the accident. The trial court did not abuse its discretion by refusing to include Coppin in the special verdict form.

III.

Appellants charge that the trial court erred by not directing a verdict that an "illegal sale" had occurred pursuant to Minnesota's Civil Damage Act (dram shop act), Minn. Stat. § 340A.801 (1996). Before granting a directed verdict, the trial court must decide whether the evidence is sufficient to sustain a verdict for the opponent. Minn. R. Civ. P. 50.01.

A directed verdict should be granted only where, in light of the evidence as a whole, it would be the duty of the trial court to set aside a contrary verdict as manifestly contrary to the evidence or to the law.

Claflin v. Commercial State Bank of Two Harbors, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).

Minnesota's legal drinking age is 21. Minn. Stat. § 340A.503, subd. 1(a) (1996). It is a crime for any person to "sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age." Id., subd. 2 (1). In contrast, the dram shop act specifies only that illegal sales of alcohol give rise to a civil action. Minn. Stat. § 340A.801, subd. 1.

Scherber, an adult, ordered and was delivered the beer, while Brueggemeier, a minor, paid the purchase price to the clerk. Whether an illegal sale of alcohol to a minor occurred under these undisputed facts was a question for the jury. The jury's conclusion that the beer was sold to Scherber, an adult, and therefore that there was no illegal sale to Brueggemeier, a minor, was not manifestly against the weight of the evidence. Therefore, the trial court did not err by refusing to direct a verdict in favor of appellants.

Appellants further claim that even if there was no illegal sale of alcohol, Watertown is liable under the dram shop act and should have had a verdict directed against it because it "furnished" alcohol to Linder, a minor. Minnesota law clearly holds that civil liability under the dram shop act results only from illegal "sales," not illegal "furnishing," of alcohol. See Holmquist v. Miller, 367 N.W.2d 468, 472 (Minn. 1985) (reversing decision that claim for furnishing liquor to minor could be brought under Minn. Stat. § 340.73, subd. 1 (1984), the predecessor of Minn. Stat. § 340A.503). While previous versions of the dram shop act provided liability for illegal "giving" of alcohol, the current act provides liability for "sales" alone. See Minn. Stat. § 340.95 (1976) (later renumbered as Minn. Stat. §340A.801). Thus appellants' argument that Watertown could be liable for "furnishing" alcohol to Linder fails as a matter of law.

IV.

Appellants argue that the trial court erred in its jury instructions regarding the definition of an "illegal sale" under the dram shop act. A trial court has broad discretion in fashioning jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). The trial court did not err by refusing to answer the jury's question during deliberations regarding a further definition of "sale" of alcohol to minors. It is clear that the civil dram shop act establishes liability only for illegal sales to minors, not for furnishing alcohol to minors. Thus the trial court did not abuse its discretion by refusing to read to the jury the full text of the criminal statute, which states that it is illegal to "sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age." Minn. Stat. § 340A.503 subd. 2 (1). The criminal statute is clearly inapplicable to civil liability.

V.

Linder asserts that he is entitled to a new trial because the trial court erroneously refused to allow a second reading of respondents' answers to defense interrogatories in which respondent asserted that Watertown made an illegal sale of alcohol to Brueggemeier. A trial court may exclude relevant evidence if its probative value is substantially outweighed by "needless presentation of cumulative evidence." Minn. R. Evid. 403; Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (trial judge has broad discretion to exclude evidence). A decision to exclude evidence will not be reversed absent abuse of that discretion. Id. The trial court did not abuse its discretion by excluding the proffered evidence as cumulative under Rule 403.

VI.

Appellants claim that Linder was improperly impeached by a question about his criminal conviction for vehicular homicide and they are entitled to a new trial accordingly. A trial court has broad discretion to admit or exclude evidence or to deny a new trial motion based on improper admission of evidence. Uselman, 464 N.W.2d at 138. Entitlement to a new trial on the basis of an improper evidentiary ruling rests on the complaining party's ability to demonstrate prejudicial error. Id.; see also Minn. R. Civ. P. 59.01(f). When objectionable evidence is heard by the jury and the trial court issues a curative instruction, a new trial should not be granted unless the misconduct was extremely prejudicial. Mueller v. Sigmond, 486 N.W.2d 841, 844 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).

When the objectionable question was asked, appellants failed to object, and Linder confirmed that he had been convicted of criminal vehicular homicide. The court immediately called a recess and Linder moved for a mistrial. The court reserved the mistrial motion and read a curative instruction when the jury returned, stating that it was to disregard Linder's conviction.[1]

Later, in denying appellants' post-trial motions, the trial court held that Wagener's improper impeachment of Linder did not warrant a new trial. The court cited Linder's previous in-court admission that he had been imprisoned, and his stipulation that he caused Wagener's death. The court held that Linder was not prejudiced by the improper impeachment, and that the curative instruction was sufficient to prevent any prejudicial effect. We agree. A new trial is not warranted because Linder was not prejudiced by the improper impeachment.

VII.

Appellants contend the trial court erred in instructing the jury regarding the proper measure of damages for wrongful death. A trial court has broad discretion in fashioning jury instructions. State Farm, 459 N.W.2d at 113.

The court's instructions to the jury included both paragraphs 11 and 12 of CIVJIG 180. See 4 Minnesota Practice, CIVJIG 180 (1986). Appellants argue that because paragraph 12 is in brackets it is meant as an alternative to paragraph 11. There is nothing mutually exclusive about the two paragraphs. The authorities section of CIVJIG 180 explains that the contents of paragraphs 11 and 12 are drawn directly from Minnesota wrongful death case law and that the two paragraphs are not necessarily alternatives in all cases. 4 Minnesota Practice, CIVJIG 180 at 169. The two paragraphs are substantially similar; thus no error results from the trial court's reading of both paragraphs instead of only one. The application of both paragraphs 11 and 12 of CIVJIG 180 to this case was appropriate. The trial court did not abuse its discretion in instructing the jury regarding damages.

Affirmed.

[1] The full curative instruction read: "The court is troubled by the last question by Mr. Salveson [Wagener's counsel]. Accordingly, I instruct you that you are to give absolutely no weight to the evidence that was just introduced concerning Mr. Linder's conviction. I instruct you that that fact has no significance to the issues that you have to decide. It should never have been presented to you."