FINNEGAN, Circuit Judge.
Glennon Callanan was riding as a guest passenger in an automobile operated by Paul Dudley,
In appeal number 11,375, defendant attacks the jury's verdict (as reduced) and judgment entered thereon because he
However, we will consider appeal number 11,376 first, because if there was an error impairing the verdict through reduction on defendant's motion, then obviously it would be unnecessary to explore defendant's appeal. But we think the district judge correctly allowed defendant's motion. When these appeals were argued orally before us, counsel made it clear that both plaintiff and defendant refrained from making any reference to the covenant during the trial before the jury. As we view it plaintiff seemingly recognized that under Illinois law a payment by a joint tort-feasor to a plaintiff should be considered in computing damages, but that such a matter is for a jury rather than a trial judge acting on a post-verdict motion to reduce damages. Since the Illinois Supreme Court decided New York, C. & St. L. R. R. v. American Transit Lines, 1951, 408 Ill. 336, 97 N.E.2d 264 approving a similar method, and the doctrine of reduction, followed by the district judge here, we remain unpersuaded that any other decision of Illinois courts warrants reversal of the judgment appealed on this point.
Plaintiff invokes the doctrine of respondeat superior in an effort to charge defendant with Nowell's conduct. It is undisputed that Nowell, equipped with sample hats took orders for them at prices set by the defendant manufacturer. Nowell received commissions on sales made when traveling in Tennessee, Kentucky and Mississippi — the territory defendant allocated to Nowell. The accident occurred in Illinois at a time when Nowell was returning home from defendant's sales meeting; attendance, at which was, apparently, not obligatory. Adherence to the closely analogous precedent laid down in Nattens v. Grolier Society, 7 Cir., 1952, 195 F.2d 449 impels us to reject all phases of defendant's appeal in case number 11,375 centering about the relationship between Nowell and defendant. Instructions to the jury, given below, on that point apparently satisfied counsel.
A narration of facts, established by this record, relating to the collision is wholly unnecessary because we think the trial judge correctly refused to take the case from the jury, or grant a new trial. Defendant's argument, on the negligence aspect, is substantially an attack on witnesses' credibility and weight to be accorded their testimony. We have repeatedly refused to annul jury verdicts for such reasons. Willits v. Yellow Cab Co., 7 Cir., 1954, 214 F.2d 612; Carter v.
The judgments and orders appealed in cases numbered 11,375 and 11,376, respectively, are affirmed.
"It is contended that the consideration received for the covenant not to sue one of two or more tort-feasors cannot be considered as payment in part of plaintiff's damages, in a suit brought against another joint tort-feasor, and it is claimed that this proposition is supported by the case of Devaney v. Otis Elevator Co., 251 Ill. 28, 95 N.E. 990. However, in Garvey v. Chicago Railways Co., 339 Ill. 276, 171 N.E. 271, and McManaman v. Johns-Manville Products Corp., 400 Ill. 423, 81 N.E.2d 137, sanction is given the doctrine that where an injury has been received by the negligence or wilfulness of two or more joint tort-feasors and suit is brought against one or more of them to recover damages, any amounts received by plaintiff for execution of a covenant not to sue some one or more of the joint tort-feasors are to be applied in reduction of the damages recoverable from those remaining in the suit. The latest pronouncement upon the subject is the well-reasoned case of Aldridge v. Morris, 337 Ill.App. 369, 86 N.E.2d 143, wherein the last two mentioned cases were followed, and which case we very carefully considered on petition for leave to appeal and after such consideration denied it. We are of the opinion that the circuit and Appellate courts properly applied the rule in this case."
See also: DeLude v. Rimek, 1953, 351 Ill.App. 466, 474, 115 N.E.2d 561.