Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.
This diversity action was brought by plaintiff John Pinkowski against defendants, A. B. Arthur and A. J. Nelson, doing business as Arnel Trading (Arnel), Ralph Coglay, doing business as Mohawk Equipme-t Company (Mohawk) and Fred Keefe.
Plaintiff's complaint alleged he was injured as a result of Keefe's negligence and that Keefe was an agent of Arnel and Mohawk or, in the alternative, that defendants were engaged in a joint venture. Plaintiff sought recovery of damages for his alleged injuries.
Approximately three months prior to the injury complained of, Mohawk leased a truck tractor to Arnel. Keefe executed this lease on behalf of Mohawk.
On December 4, 1959, at Boston, Massachusetts, fish were loaded by Arnel onto a truck trailer owned by Arnel. The tractor leased by Mohawk to Arnel was hitched to this loaded trailer. Keefe drove the unit to Chicago for delivery to Halfpap & Company (Halfpap).
On December 7, Keefe unloaded the fish at Halfpap and was assisted by plaintiff, an employee of Halfpap. A box of fish being moved by Keefe slipped causing it to strike another box which fell and struck plaintiff's left leg.
Plaintiff had previously injured this leg. In August, 1960 after the abovementioned accident, the leg was amputated. The cause of the amputation was contested at the trial but is not before us on appeal.
As stated, plaintiff filed suit against Keefe, Arnel and Mohawk. Prior to trial, plaintiff moved for summary judgment against Keefe on the issue of liability. The district court granted this motion. On the second day of trial, Keefe and Arnel entered into a written covenant not to sue with plaintiff and his wife and paid them $45,000. Keefe and Arnel were dismissed from the suit.
A jury verdict was returned in favor of plaintiff and against Mohawk in the amount of $75,000 and judgment was entered thereon.
Mohawk moved for judgment notwithstanding the verdict on, in the alternative, for a remittitur of $45,000. The district court in a memorandum opinion denied Mohawk's motions holding that, "From these facts the jury could reasonably infer that Keefe was either the agent of * * * [Mohawk] or that all the defendants were engaged in a joint venture" and that Mohawk was not entitled to a remittitur. Mohawk appealed.
The principal issues presented on appeal are whether Mohawk is liable to plaintiff because Keefe was Mohawk's agent in unloading the fish or because defendants were engaged in a joint venture; or, in the alternative, whether the $75,000 judgment against Mohawk should be reduced by the $45,000 payment made by Keefe and Arnel to plaintiff and his wife pursuant to the covenant not to sue.
In considering the district court's denial of Mohawk's motion for judgment n.o.v., we must consider the evidence in the light most favorable to plaintiff.