Ellsworth v. Hayes

71 Wis. 427 | Wis. | 1888

Tayloe, J.

It is argued that the language used by the defendant, as stated in the complaint, does not charge any unlawful or wilful miscounting of the votes cast at the election by the plaintiff, but simply that he made a mistake in counting the votes cast thereat. The language set up in the complaint is not so clearly a simple allegation of mistake as to justify the court in saying that it did not have a different meaning, and that the persons to whom it was addressed did not understand it as charging the plaintiff with a false and fraudulent count, as stated in the innuendo. If the words are fairly susceptible of the meaning which it is claimed by the plaintiff was intended by the defendant in uttering them, then it is clear that they sufficiently charge the plaintiff with a crime under the statute, which declares what shall constitute an offense by an inspector of elections (see secs. 4544, 4545, R. S.), and are actionable per se when spoken of his acts as an inspector of elections, and the court properly refused to exclude the plaintiff’s evidence. The same is true of the refusal of the motion for a nonsuit. The evidence made a clearer case of an intention on the part of the defendant to charge the plaintiff with a wilful miscounting of the votes cast at said election than is made' by the statements set out in the complaint. The court would not have been justified in granting a nonsuit. The following cases sustain the rulings of the circuit court to which the exceptions were taken: Geary v. Bennett, 53 Wis. 444, 447; Weil v. Schmidt, 28 Wis. 137; Campbell v. Campbell, 54 Wis. 90; Rowand v. De Camp, 96 Pa. St. 493, 501; Singer v. Bender, 64 Wis. 169.

In the instructions of the learned circuit judge to the jury, he expressly told them that the plaintiff could not recover in the action if they found that the defendant simply charged the plaintiff with ar. unintentional miscount of the votes; “that it was not slander for the defendant to say that the plaintiff counted votes for one candidate that were cast for another, unless the words were stated under such circumstances as that a fair and ordinary interpretation of the words spoken, by the persons hearing them, would be that the plaintiff knowingly or wilfully so miscounted the ballots; and, if you find that the words used by the defendant did not so charge, your verdict should be for the defendant.” This submitted the questions raised by the motions to exclude the evidence of the plaintiff and for a nonsuit fairly to the jury; and upon the reading of the evidence there can be no question but that there was enough in the case to require the trial judge to submit the question as to what the defendant meant by the words uttered by him.

The learned counsel also alleged for error the refusal of the court to instruct the jury that, under the evidence, they might find the statements made by the defendant conditionally privileged. There is no contention that the second and fourth instructions asked by the defendant were improperly refused by the court, as both instructions ask the court to say, as a matter of law, that the words uttered by the defendant were privileged. It cannot be contended that the evidence is so clear as to the intent with which the defendant uttered the words as would justify the court in stating, as a matter of law, that they were privileged or conditionally privileged. The third and fifth instructions asked would have been proper instructions to the jury, had there been any evidence to sustain the claim made by the defendant.¹ After a careful examination of the evidence, we do not find anything in it which would have justified the jury in finding that the defendant honestly and in good faith made the statements he is shown to have made, for the purpose of having a recount of the votes cast at such ■election, under the provisions of ch. 464, Laws of 1885. He does not show that he made the statements with the purpose of procuring a recount of the vote; nor did he ever ■take any legitimate steps towards obtaining such recount; nor is it shown that any other elector or electors in said ■town were at the time taking, or about to take, any measures to have the vote recounted; nor does he show,, as alleged in his answer, that it was openly and publicly suggested and charged immediately after such election, by divers and sundry of the electors of said voting precinct, that the plaintiff had made a mistake in counting the votes cast at such election. The evidence does not disclose that any one made the charge except himself and one other man, nor that any one except himself suggested that a recount ought to be made. There was not enough in the evidence to justify the court in submitting the proposition embraced in the instructions asked to the consideration of the jury. We think the case was fairly submitted to the jury, and there is no reason, upon the whole evidence, for disturbing their verdict.

By the-Court.— The judgment of the circuit court is affirmed.