Bethel v. Janis

• Decision Date: 07 September 1984
• Docket Number: Civ. No. 81-5018.
• Citation: 597 F. Supp. 56
• Parties: Rodman J. BETHEL, Personal Representative of the Estates of Raydon A. Hurst and Patricia A. Hurst, decedents; Peter A. Hurst, and Kevin A. Hurst, Plaintiffs, v. Marvin W. JANIS, Defendant.
• Court: U.S. District Court — District of South Dakota

597 F. Supp. 56

Rodman J. BETHEL, Personal Representative of the Estates of Raydon A. Hurst and Patricia A. Hurst, decedents; Peter A. Hurst, and Kevin A. Hurst, Plaintiffs, v. Marvin W. JANIS, Defendant.

Civ. No. 81-5018.

United States District Court, D. South Dakota, W.D.

September 7, 1984.

Lonnie Bryan, Frank Wallahan, Wallahan Law Offices, Rapid City, S.D., for plaintiffs.

Scott Sumner, Banks & Johnson, P.C., Rapid City, S.D., for defendant.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

CASE SUMMARY

Plaintiffs, Florida residents, brought this diversity action pursuant to 28 U.S.C. § 1332, against defendant, a South Dakota resident, for damages arising from a two car head-on collision that occurred within the boundaries of the Cheyenne River Sioux Indian Reservation in South Dakota in 1979. Plaintiffs sought damages under the South Dakota Wrongful Death statute, SDCL § 21-5-7, for the deaths of their parents in the accident, in addition to injuries suffered by plaintiffs themselves in the collision. The court, having considered the evidence presented at a bench trial, enters judgment for plaintiffs.

FACTUAL BASIS

In August 1979, defendant Marvin W. Janis, an American Indian, was driving on Highway 212 in Dewey County, South Dakota, within the boundaries of the Cheyenne River Sioux Indian Reservation. Janis, who was later shown to have had a blood alcohol content of 0.21%, crossed the centerline and collided with an automobile operated by Raydon Hurst, a 49 year old school teacher from Florida. The Hurst vehicle also carried Raydon's wife, Patricia, 45, and their two minor children, Peter and Kevin. Raydon and Patricia were killed instantly, while Peter and Kevin survived with personal injuries. A third son, Terry, was not in the car. Janis subsequently pled guilty before this court on a charge of involuntary manslaughter for the death of Raydon Hurst. It is essentially undisputed that Janis' negligence was the sole proximate cause of the accident.

JURISDICTION

As indicated by the factual summary just given, this is an action between non-Indian plaintiffs and an Indian defendant relating to the commission of a tort within Indian country. A South Dakota state court would have no jurisdiction over this case. See Kain v. Wilson, 83 S.D. 482, 161 N.W.2d 704 (1968); Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (1967). While a series of Ninth Circuit cases, R.J. Williams Co. v. Fort Belknap Housing Auth., 719 F.2d 979 (9th Cir.1983); Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir.1982); Hot Oil Service, v. Hall, 366 F.2d 295 (9th Cir.1966); Lottell v. Nakai, 344 F.2d 486 (9th Cir.1965), would similarly deny this court its jurisdiction here, a contrary rule is followed in this circuit. Poitra v. Demarrias, 502 F.2d 23 (8th Cir.1974) found diversity jurisdiction for a wrongful death action between an Indian plaintiff and an Indian defendant arising from an automobile collision on an Indian reservation. This Court's decision in American Indian National Bank v. Red Owl, 478 F.Supp. 302 (D.S.D. 1979), concluded that such diversity jurisdiction was not limited to cases involving only Indian parties. See also American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F.Supp. 1020 (D.Col. 1982) (where there is a "transaction between a non-Indian plaintiff and an individual member of a tribe acting solely in his private capacity ... there is no interference with reservation self government or internal tribal affairs ... and a federal court can properly exercise subject matter jurisdiction." 551 F.Supp. at 1022).¹ This court will therefore find that it possesses jurisdiction over this action.

PUNITIVE DAMAGES

Plaintiffs claim that this court should award punitive damages because defendant was intoxicated at the time of the accident. It is true that defendant pled guilty to involuntary manslaughter before this Court in the death of Raydon Hurst.² Punitive damages are, of course, awarded as punishment for outrageous conduct and to deter similar conduct in the future. Restatement (Second) of Torts § 908 (1979). Outrageousness may be concluded from the defendant's evil motive or reckless indifference to the rights of others. Id. In South Dakota, punitive damages may be awarded in the discretion of the finder of fact "where the defendant has been guilty of oppression, fraud, or malice, actual or presumed ... for the sake of example, and by way of punishing the defendant." SDCL § 21-3-2. It is this court's view that the record, which essentially does no more than to prove the fact of defendant's intoxication, is totally inadequate to show the actual or presumed malice necessary to grant an award of punitive damages. On this record, it is clear that the drunkenness alone is insufficient to sustain a cause of action for punitive damages. See Giddings v. Zellan, 82 App.D.C. 92, 160 F.2d 585 (1947), cert. den., 332 U.S. 759, 68 S.Ct. 61, 92 L.Ed. 345 (1947). Further, punitive damages are ordinarily not awardable under a wrongful death statute. Restatement (Second) of Torts § 908, comment a, (1979)³. The South Dakota Wrongful Death Statute, SDCL § 21-5-7, is no exception to this general rule. It is fundamental that in the absence of a statute providing for recovery, no cause of action for wrongful death lies. Jirsa v. Ice, 88 S.D. 209, 213, 217 N.W.2d 465, 467 (1974). Accordingly, an action brought under the wrongful death statute is an exclusive remedy and the legislature is free to impose restrictions upon it. Hoekstra v. Helgeland, 78 S.D. 82, 111, 113, 98 N.W.2d 669, 684, 686 (1959). In an earlier form, the South Dakota Wrongful Death statute did indeed allow for the recovery of punitive damages. In 1887, however, the legislature amended the statute to allow recovery of only actual or compensatory damages. Smith v. Chicago, Mil. & St. P. Ry. Co., 6 S.D. 583, 587-88, 62 N.W. 967, 968 (1895). As Smith indicates, removal of the word "punitive" from the statute left pecuniary damages as the exclusive remedy.⁴Id. This court is compelled, therefore, to find that the general statute allowing punitive damages, SDCL § 21-3-2, does not apply to the Wrongful Death statute.

This court must accordingly deny any recovery of punitive damages in this action, whether for the wrongful death of Raydon and Patricia Hurst or for the personal injuries of Kevin and Peter Hurst.

PREJUDGMENT INTEREST

Plaintiffs request an award of prejudgment interest on all damages recovered. Plaintiffs apparently concede that they are not entitled to interest under SDCL § 21-1-11, and it is clear that they are not. SDCL § 21-1-11 has been primarily applied in contract actions, see Northwestern Eng'g. Co. v. Thunderbolt Enters. Inc., 301 N.W.2d 421, 425 (S.D.1981); North River Ins. Co. v. Golden Rule Constr. Co., 296 N.W.2d 910, 914 (S.D. 1980). As Cole v. Melvin, 441 F.Supp. 193, 210 (D.S.D.1977), put it, "the test for awarding interest is not whether liability was clear, but whether (assuming liability) the damages were reasonably ascertainable by reference to prevailing markets."

This test can hardly be said to be satisfied by the bulk of the wrongful death and personal injury claims here. The monetary valuations of the personal injuries suffered by Peter and Kevin Hurst, their pain and suffering, the lost instruction, training, education, guidance, advice and counsel and homemaking services of the parents, and the lost companionship and society of their parents, are by necessity extremely difficult to set. The loss of support the children could have expected from their parents, while somewhat more easily quantifiable, is also highly uncertain. For none of these categories of damages may it be said that they "were reasonably ascertainable by reference to prevailing markets."

Plaintiffs do request interest under SDCL § 21-1-13, which allowed the finder of fact discretionary power to award interest in "an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud or malice." For the same reasons given in the preceding discussion of punitive damages, the court finds no basis for the award of interest for "oppression, fraud, or malice." Likewise, the Court finds that plaintiffs have presented no persuasive reasons why the record here justifies an award of interest, and it is therefore denied, with the exception of the funeral expenses for Raydon and Patricia Hurst, and the medical and hospital expenses for Peter and Kevin. These elements obviously stand on different footing and prejudgment interest of 15% is granted pursuant to SDCL § 54-3-4, for those sums. Safeco Ins. Co., v. City of Watertown, S.D., 538 F.Supp. 49 (D.S.D. 1982). Given the fact the accident, deaths, burials and hospitalization all occurred in mid-August, 1979, the court will utilize the date of September 1, 1979, as the date upon which these expenses became fixed.

DAMAGES FOR WRONGFUL DEATH

Loss of Financial Support. The largest single category of compensatory damages plaintiffs seek is for the support plaintiffs could have expected from their parents but for their deaths. Plaintiffs calculate this amount by taking Raydon Hurst's 1978 salary as a science and math teacher, $23,764, then assuming a six percent salary raise for each of the remaining fifteen years in Raydon's working-life expectancy, and concluding that the resulting total, $621,484, is the sum to which they are entitled. While this court entertains some doubts about the validity of any calculation that projects a school teacher to have an annual salary of $60,367 in 1994, there are much more fundamental difficulties with the amount of plaintiffs' claim.

Damages for wrongful death in South Dakota must be "proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought." SDCL § 21-5-7. As interpreted by Hodkinson v. Parker, 70 S.D. 272, 275, 16 N.W.2d 924, 926 (1944),...