Whiting v. Hoffine

• Decision Date: 23 July 1980
• Docket Number: Nos. 12769,12770,s. 12769
• Citation: 294 N.W.2d 921
• Parties: Dianna WHITING, Plaintiff and Appellant, v. Lowell H. HOFFINE and Viola M. Hoffine, Defendants and Appellees. David WHITING, Plaintiff and Appellant, v. Lowell H. HOFFINE and Viola M. Hoffine, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 921

294 N.W.2d 921

Dianna WHITING, Plaintiff and Appellant, v. Lowell H. HOFFINE and Viola M. Hoffine, Defendants and Appellees.

David WHITING, Plaintiff and Appellant, v. Lowell H. HOFFINE and Viola M. Hoffine, Defendants and Appellees.

Nos. 12769, 12770.

Supreme Court of South Dakota.

Argued April 23, 1980.

Decided July 23, 1980.

Gary E. Davis of Johnson, Johnson & Eklund, Gregory, for plaintiffs and appellants.

Stanley E. Whiting of Day, Grossenburg & Whiting, Winner, for defendants and appellees.

FOSHEIM, Justice.

The plaintiffs, husband and wife, brought separate actions in tort against the defendants. By stipulation, the cases were consolidated in circuit court. The circuit court dismissed plaintiffs' complaints for failure to join an indispensable party. Since the issues before us are identical, the cases have also been consolidated on appeal. We reverse.

The injuries sustained by Dianna Whiting (a non-Indian) were allegedly caused by carbon monoxide poisoning at a building owned by the defendants, Lowell H. Hoffine and Viola M. Hoffine (non-Indians), in Mission, South Dakota. It is claimed that the gas came from a propane furnace on that property. Plaintiffs had sub-leased part of the building from Jacob Antoine (an Indian) who, at the time of the injury, was renting the entire structure from the defendants. The action of Dianna Whiting seeks recovery for her injuries. The complaint of David Whiting (an Indian) alleges a loss of consortium resulting from his wife's injuries.

Mission, South Dakota, is within a closed portion of the Rosebud Indian Reservation. The trial court, while finding that Jacob Antoine had exclusive possession of that part of the premises where the carbon monoxide problems occurred and that he had assumed the obligation of keeping the building in repair, concluded that for jurisdictional reasons Antoine could not be joined in state court as a defendant either to litigate his liability or to seek contribution from him in the principal action in the event plaintiffs recovered against defendants.

The first issue raised by appellants is whether the inability of the trial court to obtain jurisdiction over a person for purposes of joining him as a third-party defendant entitled the third-party plaintiffs to an order dismissing the original action pursuant to SDCL 15-6-19(b). The trial court, in dismissing the actions, concluded that Jacob Antoine was an indispensable party. ¹

It is familiar law that each joint tort-feasor is responsible for the wrong and that they may be sued jointly or severally. ² Fusfield v. Smith, 66 S.D. 309, 282 N.W. 523 (1938). This is subject, however, to the right of contribution among joint tort-feasors, ³ which right may be exercised by the defending party in the principal action. ⁴

It is settled law that state courts do not have jurisdiction over Indian persons who reside on Indian reservations concerning causes of action that arose in Indian country. Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (1967). Indians, however, may bring suit against non-Indians in state courts. United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023, (1926); Felix v. Patrick, 145 U.S. 317, 12 S.Ct. 862, 36 L.Ed. 719 (1892). While it has also been established that tribal courts do not have jurisdiction over non-Indians in criminal cases, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), see: State v. Brewer, 266 N.W.2d 560 (S.D.1978), non-Indians may nonetheless bring suit in tribal courts against Indians arising out of matters occurring on the reservation, Williams v. Lee, supra, unless excluded by tribal law. Schantz v. White Lightning, 502 F.2d 67 (8th Cir. 1974). Counsel conceded in argument that both the claims of plaintiffs and any possible rights of contribution by defendants against Jacob Antoine could be pursued in tribal court. ⁵

The trial court indicated that plaintiffs could seek relief in federal district court. In Schantz v. White Lightning, supra, however the United States Court of Appeals for the Eighth Circuit held that where the only issues to be litigated under the facts of the case were those which might arise under state law, the federal district court was without jurisdiction since no federal question was involved and there was no diversity of citizenship where defendant Indians were members of tribes located in North Dakota and plaintiffs, non-Indians, were residents of North Dakota residing outside the boundaries of the reservation. Consequently, we accept the conclusions of counsel for both parties that the federal district court does not have jurisdiction to hear and determine the issues in this case, that our courts cannot grant the defendants Lowell H. Hoffine and Viola M. Hoffine any right of contribution which may accrue against Jacob Antoine, and that an action brought in tribal court would not reach these defendants. Clearly, therefore, complete relief cannot be accorded among those already parties to this action in the absence of Jacob Antoine. He thus comes within the category of persons who, under SDCL 15-6-19(a), ⁶ should be joined if feasible.

Since Jacob Antoine cannot be joined, we must turn to SDCL 15-6-19(b) ⁷ and determine whether in equity and good conscience the action should have proceeded among the parties before it or was properly dismissed because the absent person was indispensable. Factors to be considered by the Court in making that determination are: (1) To what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, prejudice can be lessened or avoided; (3) whether a judgment rendered in the person's absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder. SDCL 15-6-19(b). Since 15-6-19(a) and (b) are patterned after Rule 19 of the Federal Rules of Civil Procedure, we have the benefit of federal court decisions interpreting such sections. In Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-9, 88 S.Ct. 733, 743, 19 L.Ed.2d 936, 950 (1968), the Supreme Court said:

The decision whether to dismiss (i. e., the decision whether the person missing is "indispensable") must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests. Rule 19 does not prevent the assertion of compelling substantive interests; it merely commands the courts to examine each controversy to make certain that the interests really exist. To say that a court "must" dismiss in the absence of an indispensable party and that it "cannot proceed" without him puts the matter the wrong way around: a court does not know whether a particular person is "indispensable" until it has examined the situation to determine whether it can proceed without him.

The only issues which could be litigated among the present parties would relate to the alleged liability of the defendants. If the actions were to continue in state court, any subsequent claim against Mr. Antoine in tribal court would then be in the nature of contribution and any decision of a court in this state as to liability would not be res judicata or binding on Mr. Antoine. In Provident Tradesmens Bank & Trust Co. v. Patterson, supra, the Supreme Court, in applying the "equity and good conscience" test of Rule 19(b), as to the first factor stated:

(T)here is the interest of the outsider whom it would have been desirable to join. Of course, since the outsider is not before the court, he cannot be bound by the judgment rendered. This means, however, only that a judgment is not res judicata as to, or legally enforceable against, a nonparty. It obviously does not mean either (a) that a court may never issue a judgment that, in practice, affects a nonparty or (b) that (to the contrary) a court may always proceed without considering the potential effect on nonparties simply because they are not "bound" in the technical sense. Instead, as Rule 19(a) expresses it, the court must consider the extent to which the judgment may "as a practical matter impair or impede his ability to protect" his interest in the subject matter.

390 U.S. at 110, 88 S.Ct. at 738, 19 L.Ed.2d at 945.

Since it does not appear that Jacob Antoine can be prejudiced if this action proceeds, we need not address the second factor under SDCL 15-6-19(b) as to how any prejudice could be lessened by the shaping of relief or other measures.

Since each tort-feasor is severally liable and the measure of damages is the amount which will compensate for all the detriment proximately caused by the tort, ⁹ it follows that whatever judgments may be rendered in the present actions will be adequate to fully compensate plaintiffs under the third criterion of SDCL 15-6-19(b).

The fourth factor is more complex. The plaintiffs' causes of action have been dismissed and, if that disposition stands, their only remaining remedy is to sue Jacob Antoine in tribal court. Whether they would then encounter another Rule 19(b) motion to dismiss on the ground that the Hoffines were not joined as indispensable parties, we cannot speculate. By affirming the dismissal, however, we would in effect be telling the plaintiffs that their only remedy is to seek in tribal court what their state courts deny them. We cannot fairly conclude that plaintiffs would have an adequate remedy in tribal court if the same remedy is less than adequate in the state courts.

If the present action proceeds, either the plaintiffs will recover or the defendants will be absolved of liability. Obviously, in the latter event, the question of contribution becomes moot and the defendants have...