Odenwalt v. Zaring, 13027
Decision Date | 24 September 1980 |
Docket Number | No. 13027,13027 |
Citation | 624 P.2d 383,102 Idaho 1 |
Parties | John W. ODENWALT, Plaintiff-Appellant and Cross-Respondent, v. Don ZARING, Defendant-Respondent and Cross-Respondent, and Bannock Creek Stockmen's Association, Defendant-Respondent, and Cross-Appellant. |
Court | Idaho Supreme Court |
Thomas F. Dial and Gregory C. May of Dial, Looze & May, Pocatello, for John W. Odenwalt.
William A. Parsons of Parsons & Smith, Burley, for Don Zaring.
Roger D. Cox and Dwight R. Bowen of Cox & Bowen, Idaho Falls, for Bannock Creek Stockmen's Assn.
Defendant Bannock Creek Stockmen's Association is composed entirely of Indian members. The association grazes both Indian and non-Indian owned livestock on the Fort Hall Indian Reservation. The non-Indian owners pay a fee for this service. In February, 1971, defendant Don Zaring entered into a contract with the association pursuant to which the association agreed to herd 200 head of Zaring's cattle on the reservation.
In October of 1971 some of the cattle wandered through inadequate fencing onto an interstate highway. There plaintiff John Odenwalt's pickup collided with one of Zaring's cattle. Odenwalt sued both Zaring and the association for damages, alleging that the defendants were negligent in allowing the struck cow to roam unattended at night on a highway situated within a fenced area and herd district.
The association initially moved to dismiss the complaint against it on the ground that the district court lacked jurisdiction over the association and over the subject matter as it related to the association. The trial court denied the motion. A jury trial was held in December, 1977. The jury found that Odenwalt had sustained damages totaling $53,800.00 and allocated negligence as follows: plaintiff Odenwalt, 25%; defendant Zaring, 10%; and defendant association, 65%. The trial court, relying on I.C. § 6-801, entered judgment on the verdict in favor of Odenwalt against the association for $40,350.00, but denied Odenwalt any judgment against Zaring. Odenwalt then moved that the judgment be amended by including Zaring as a judgment debtor. The court denied the motion, holding that Odenwalt's negligence had to be compared with each individual defendant's negligence; that Odenwalt could not recover from Zaring because Odenwalt was more negligent than Zaring. Odenwalt appeals from this judgment; the association cross-appeals from the judgment and from the denial of its motion challenging jurisdiction.
The association, in support of its appeal from the order denying its motion for summary judgment, argues that Congress has plenary power over matters arising in Indian territory and that the courts of the State of Idaho lack subject matter jurisdiction here (1) because Congress has preempted the field and (2) because assumption of jurisdiction by the state would infringe upon the Shoshone-Bannock Tribe's right of self-government. It is true that Congress has plenary power over affairs arising within Indian country, unless it has provided otherwise and unless the state has correspondingly assumed such jurisdiction. See 25 U.S.C. § 1322; I.C. § 67-5102; Kennerly v. District Court of the Ninth Judicial Dist. of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). It is also true that Idaho has not assumed jurisdiction over tort actions arising on the reservation. 1 This Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973) (citation omitted).
[102 Idaho 3] action, however, did not "arise on" the reservation.
It was similarly noted in Voorhees v. Spencer, 89 Nev. 1, 504 P.2d 1321, 1323-24 (1973), that
Thus, it was held in State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786, 789 (1973), that "state jurisdiction is proper in cases between Indians and non-Indians involving contractual obligations incurred off the reservation ...," and in Crawford v. Roy, 577 P.2d 392, 393 (Mont.1978), that the state has jurisdiction "over a transaction involving an Indian party when that transaction involved significant contacts with the state outside reservation boundaries." Accord, Little Horn State Bank v. Stops, 170 Mont. 510, 555 P.2d 211 (1976), cert. denied 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977) ( ).
Nonetheless, the association contends that Congress has preempted this area by enacting substantial legislation governing grazing rights upon Indian lands, that the grazing agreement "which was apparently found to have been breached" was subject to substantial regulation by the Bureau of Indian Affairs. To support this argument, the association cites four statutes: 25 U.S.C. § 179 ( ); 25 U.S.C. § 81 ( ); 25 U.S.C. § 391 ( ); and 25 U.S.C. § 397 (leasing of Indian lands). However, this is not a contract action, nor one dealing with Indian lands. Rather, this is a tort action for damages resulting from a collision with a cow which was negligently allowed to wander on the highway. Thus, the duty that was breached was not one of contract, but one to keep the cow off the highway, see, e. g., Cunningham v. Bundy, 100 Idaho 456, 600 P.2d 132 (1979); Whitt v. Jarnagin, 91 Idaho 181, 418 P.2d 278 (1966); Corthell v. Pearson, 88 Idaho 295, 399 P.2d 266 (1965); and, as a corollary, to see that the fences were in repair and adequate to keep the cattle off the highway. Whitt v. Jarnagin, supra. The association has failed to call to our attention any federal statutes dealing with tort actions such as this one, and we do not see that the federal government has preempted state jurisdiction over this action.
The association similarly contends that the contacts of the association with the citizens of Idaho were minimal and that the duty upon which liability was premised arose out of a contract arising on the reservation such that state jurisdiction would "substantially interfere with the rights of the reservation Indians to have contracts which are intended to be performed strictly on the reservation, interpreted in light of the Indian customs and familiar terminology employed by the members of the Indian reservation." 2 However, the accident from
[102 Idaho 4] which plaintiff's claim arose was more than a minimal contact with a citizen of Idaho and occurred off the reservation. The district court did not err in assuming jurisdiction over the defendant association.
The second issue before us is whether the defendant Zaring, who was 10% negligent, is liable to plaintiff Odenwalt, who was 25% negligent. More broadly stated, the question is whether a plaintiff may recover from a defendant who is less negligent than the plaintiff, where the plaintiff's negligence was less than the combined negligence of the negligent defendants. Two lines of authority have emerged. Under one approach, called the "individual" or "Wisconsin" rule, the plaintiff's negligence is compared to the negligence of each individual defendant, such that a plaintiff may not recover from a defendant found to be as negligent or less negligent than himself. Marier v. Memorial Rescue Service, Inc., 296 Minn. 242, 207 N.W.2d 706 (1973); Rawson v. Lohsen, 145 N.J.Super. 71, 366 A.2d 1022 (1976); Stannard v. Harris, 380 A.2d 101 (Vt.1977); Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721 (1934). The second approach, termed the "unit" rule, permits the plaintiff to recover from any negligent defendant so long as the plaintiff's negligence is less than the combined negligence of all the defendants. Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962); Graci v. Damon, --- Mass.App. ---, 374 N.E.2d 311 (1978), aff'd --- Mass. ---, 383 N.E.2d 842 (1978); Laubach v. Morgan, 588 P.2d 1071 (Okl.1978). Because we think it clear that when I.C. § 6-801 was enacted the Idaho legislature intended to adopt the Wisconsin or individual rule, we affirm the trial court.
Idaho's comparative negligence statute, I.C. § 6-801, reads as follows:
The above statute, enacted in 1971, is virtually identical to the Wisconsin comparative negligence statute in effect in 1971. 3 Wisconsin was one of a few states which pioneered the concept of comparative negligence. 1931 Wis.Laws ch. 242. With the exception of some dicta found in May v. Skelly Oil Co., 83 Wis.2d 30, 264 N.W.2d 574 (1978). 4 The Wisconsin Supreme Court has It must be remembered that the Idaho legislature did not intend to create a system of pure comparative negligence which always apportions loss according to fault. For example, under I.C. § 6-801...
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