Calero v. Del Chemical Corp.

• Decision Date: 08 May 1975
• Docket Number: No. 463,463
• Citation: 228 N.W.2d 737,68 Wis.2d 487
• Parties: Mario CALERO, Respondent, v. DEL CHEMICAL CORPORATION and Robert C. Bagemihl, Appellants.
• Court: Wisconsin Supreme Court

Page 737

228 N.W.2d 737

68 Wis.2d 487

Mario CALERO, Respondent, v. DEL CHEMICAL CORPORATION and Robert C. Bagemihl, Appellants.

No. 463.

Supreme Court of Wisconsin.

May 8, 1975.

Joseph P. Balistrieri, Milwaukee, for appellants.

Jack L. Goodsitt, Milwaukee, for respondent.

DAY, Justice.

This is an appeal from a judgment of the trial court, following a jury trial, awarding damages to Mr. Mario Calero (plaintiff-respondent) against Robert C. Bagemihl (defendant-appellant) and his employer Del Chemical Corporation (Del Chemical) (defendant-appellant), Mr. Bagemihl was found by the jury to have communicated defamatory oral or written statements about the plaintiff to prospective employers of the plaintiff. A judgment was entered for damages. The defendants also appeal from the decision and order denying the defendants' post-trial motions. The issues raised are discussed in this opinion.

At the time the case was tried the plaintiff was a married, 50-year-old, collegetrained public accountant, who was then living and working in Arizona. In November of 1964, the plaintiff, who had previously been employed as an accountant for various companies, applied for a position with Del Chemical and was interviewed and hired by Mr. Bagemihl. Plaintiff began work on November 16, 1964, as a general accountant and assistant to Mr. Bagemihl at $135 a week. From November 16, 1964 to November 2, 1967, the plaintiff received 11 consecutive raises and finally earned $240 per week and was the director of purchasing. As director of purchasing the plaintiff designed and prepared an index file of purchasing records to guide him in his negotiations with suppliers. These were put on 11 by 8 1/2 inch cards and contained pertinent information relating to the purchase of raw materials for the corporation. The plaintiff initiated this system and by the fall of 1967 there were approximately 150 of such cards which were kept in his office and to which his secretary also had access.

The plaintiff testified that on November 1, 1967, he had been subjected to verbal abuse by the company president and left the office and went home. That evening he sent a telegram to Mr. Bagemihl, informing him that pursuant to company policy he was taking a week's vacation. The next day the plaintiff informed Mr. Bagemihl that he had quit and was looking for other employment. Mr. Bagemihl accepted the plaintiff's resignation but asked him to stay on to train a replacement and stated he would be paid for vacation time and receive severance pay if he would do so. Plaintiff agreed to do this and arrived at the corporation the following morning to train his replacement who was already occupying the plaintiff's desk. He continued to work at the corporation the following week. The plaintiff testified that on Friday, November 10, 1967, he received a call at work from one Richard Danen, a Del Chemical accountant who was recently transferred to Reno, Nevada, to set up the same purchasing procedures for an affiliated company there as the plaintiff had done for the company in Wisconsin. Mr. Danen requested copies of the purchasing records in the filecard system that the plaintiff had designed. Immediately thereafter the plaintiff began photocopying the cards in the presence of others in the office and was in no way secretive about such copying. After he had completed 100 of the cards, he put them on a shelf in his office and took none off the premises. He testified that the following Monday morning, November 13, when he arrived at work, his secretary told him to go directly to Mr. Bagemihl's office. Mr. Bagemihl told him to leave the premises and that he was dismissed because Mr. Bagemihl had heard that he was starting a competing company, was attempting to hire away various key personnel of the corporation and was 'helping himself' to confidential corporate records about suppliers. The plaintiff testified that when so accused by Mr. Bagemihl he denied the allegations and said he was copying the purchasing records at the express request of Mr. Danen in Reno. The plaintiff said he then went to his office with Mr. Bagemihl and handed to him the copies of the file cards he had made the preceding Friday. At Mr. Bagemihl's request, he surrendered his corporate car keys, credit card and office keys, took a cab home and never returned to the corporate offices.

Mr. Bagemihl testified that upon accusing the plaintiff, the plaintiff made no response or explanation whatever and did not deny any of the charges. Mr. Bagemihl could not recall the plaintiff mentioning anything about Danen. Furthermore, he testified that when he went to the plaintiff's office, the plaintiff did not give him the copies of the purchasing cards but gave him only his keys and credit card. Mr. Bagemihl said that he made no request for a return of the cards. Mr. Bagemihl admitted he had no personal knowledge whatever as to plaintiff's starting a competing business, hiring away employees, or copying records. He testified he first heard the plaintiff was starting a competing business the week before November 13 from several other employees. He did not discuss it with the plaintiff then although he termed it a 'pretty well-known office rumor.' He testified that he was told that the plaintiff and James Nooyen, another employee, were starting a competing business and both were fired November 13, 1967. Mr. Bagemihl also admitted he made no attempt to investigate or verify any of these reports. He said he had no reason to doubt the truthfulness of his informants and so he did nothing but listen to the people who confided in him. Both the plaintiff and Mr. Nooyen denied that they had taken any steps to organize or participate in a competing business on or before November 13th. The record does contain articles of incorporation for an American Municipal Chemical Corporation dated November 18, 1967, signed by the plaintiff and Mr. Nooyen. Mr. Nooyen testified that he and the plaintiff decided after they were fired that for financial reasons they should start a company. Mr. Nooyen, however, testified that about a week after signing the corporate papers he backed out of the operation altogether because he felt he needed more money.

The plaintiff's testimony was that he believed there were two such corporations; he said the one of November 18th was really Mr. Nooyen's idea but that it ended quickly and that in December of 1967 the plaintiff joined with some friends unconnected with the Del Chemical Corporation and tried to start another enterprise with the same name. He said that the new company started in earnest in January of 1968 with the plaintiff as the president. He worked for that company until June of 1968 without compensation, and then left the firm. Mr. Nooyen was never involved in that business. While the American Municipal Chemical Corporation was in the same business as Del Chemical after it began in January, 1968, both the plaintiff and Mr. Nooyen denied that prior to November 13, 1967, when they were discharged from Del Chemical, that they were organizing any competing business. The sources of Mr. Bagemihl's information appear to have been rumors relayed to him by two secretaries. Another employee, Gary Umhoefer, is the source of the information regarding Mr. Nooyen's supposed solicitation of Mr. Umhoefer for employment.

There is no evidence in the record that the plaintiff ever tried to get 'key' or other personnel to leave Del Chemical Corporation. The plaintiff specifically denied it. Mr. Bagemihl again relied on informants within the office and he admitted he made no effort to verify reports about soliciting employees. Mr. Nooyen testified that his conversation with Mr. Umhoefer involved only a possibility at most and that he had no intention at that time of starting a competing business.

The plaintiff denied in his testimony that he was 'helping himself' to confidential corporation records for his private use. Again Mr. Bagemihl admitted he had no direct personal experience with which to support this charge. He stated that others had told him that the plaintiff was copying corporate records and he believed them. He said when he first fired the plaintiff he was under the impression the plaintiff was removing the records from the premises, but then admitted his informants had told him only that they had seen the plaintiff copying the records during working hours. This was done in plain view. None had told him that they had seen the plaintiff leaving with the records. Mr. Bagemihl also admitted he made no attempt to ascertain from those seeing the plaintiff copying the records any reason as to why the plaintiff may have been doing so. Mr. Bagemihl testified that he could not recall having asked Mr. Danen anything about it, nor could he recall Mr. Danen telling him anything about the records.

Mr. Danen, on the other hand, said in a deposition in Reno on September 22, 1973, that he had spoken to Mr. Bagemihl before going to Reno about getting copies of the cards and that Mr. Bagemihl had not voiced objection. He said that he did call the plaintiff after arriving in Reno and requested copies of the cards. He said that he also spoke to Mr. Bagemihl about the cards sometime after arriving in Reno and eventually did receive copies either in November or December.

There was testimony from secretaries of the company that the plaintiff had also asked for some cards referred to as formulation cards, but they, being suspicious, kept the cards from him and reported this fact to Mr. Bagemihl.

After leaving Del Chemical, the plaintiff was unemployed until January of 1968, when he began working, without compensation, for the company which he had helped form (American Municipal Chemical Corporation). He remained there for six months. He then found employment as a general accountant with National Tape Distributors at $135 a week. By November of 1968 he was being considered for promotion to comptroller....