Whiting v. Hoffine

294 N.W.2d 921, 1980 S.D. LEXIS 348
CourtSouth Dakota Supreme Court
DecidedJuly 23, 1980
Docket12769, 12770
StatusPublished
Cited by9 cases

This text of 294 N.W.2d 921 (Whiting v. Hoffine) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whiting v. Hoffine, 294 N.W.2d 921, 1980 S.D. LEXIS 348 (S.D. 1980).

Opinions

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. Hof-fine 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 [923]*923part 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-fea-sors,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 [924]*924U.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 eases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against [925]*925opposing interests.

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Whiting v. Hoffine
294 N.W.2d 921 (South Dakota Supreme Court, 1980)

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Bluebook (online)
294 N.W.2d 921, 1980 S.D. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiting-v-hoffine-sd-1980.