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Hoffman-La Roche Inc. v. Greenberg

August 26, 1971

HOFFMAN-LA ROCHE, INC., PLAINTIFF-APPELLEE,
v.
CARL GREENBERG ET AL., DEFENDANTS-APPELLANTS, AND WILLIAM RANDAZZO AND BRIAN H. SMITH, DEFENDANTS



Fairchild, Cummings and Stevens, Circuit Judges.

Author: Stevens

STEVENS, Circuit Judge.

Appellee, a manufacturer of drugs, brought this civil action against six individual defendants to recover the value of merchandise allegedly stolen from its Skokie, Illinois, plant.*fn1 During the year preceding April 27, 1964, customer shipments having an invoice value of about $24,000 were not delivered. Some of this merchandise was pilfered by employees working on appellee's shipping dock and sold to truck drivers employed by carriers doing business with appellee. There is evidence tending to prove that one of these drivers resold stolen merchandise to appellant Mirsky, and that another driver resold three or four cartons to appellants Carl Greenberg and Dave Greenberg.

Although the two drivers apparently obtained stolen merchandise from a common source, there is no evidence that they knew each other or that either knew of the other's activities. Nor is there any evidence that Mirsky knew the Greenbergs or the driver from whom they made their purchases, or vice versa.

Appellee's complaint was in two counts. The first alleged conversion and the second conspiracy. The six defendants included an employee who stole merchandise (Randazzo), two truck drivers (Campeglia, now deceased, and Smith), two drug wholesalers (Carl Greenberg and Dave Greenberg), and a retail druggist (Mirsky). The jury returned verdicts finding all defendants except Mirsky guilty on Count I and all defendants guilty on Count II. Damages were assessed by the jury as follows:

COUNT I COUNT II

Randazzo $2,660 $5,138

Smith 798 2,202

Mirsky 73 4

Carl Greenberg 931 3,303

Dave Greenberg 931 3,303

After receiving the verdicts, the court entered an order which recited that "for the purpose of entering judgment, the verdicts on Count I and Count II are consolidated in each instance and judgment entered on behalf of the plaintiff and against defendants in the following amounts. * * *" The order then recited the respective amounts assessed by the jury against each defendant on Count II and stated that those amounts were inclusive of the amounts returned on Count I. In substance, the order appears to have merged the Count I verdicts into the larger amounts returned under Count II.

Only the two Greenbergs and Mirsky have appealed. Treating the case as though only Count II is involved, they contend: (1) that there was insufficient proof of conspiracy; (2) that evidence was improperly received; and (3) that the record indicates that an ...


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