Ellsworth v. Hayes

• Decision Date: 27 March 1888
• Citation: 37 N.W. 249,71 Wis. 427
• Parties: ELLSWORTH v. HAYES.
• Court: Wisconsin Supreme Court

71 Wis. 427

37 N.W. 249

ELLSWORTH

v.HAYES.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Dane county.

Action by H. G. Ellsworth against John T. Hayes, to recover damages for slanderous words alleged to have been spoken by defendant of plaintiff. Judgment for plaintiff, and defendant appeals.Rogers & Hall, for appellant.

J. L. O'Connor and John M. Olin, for respondent.

TAYLOR, J.

This action was brought by the respondent to recover damages for slanderous words alleged to have been uttered and published by the appellant. Upon the trial of the action in the circuit court, the respondent had a verdict in his favor for $100 damages, upon which verdict judgment was entered in his favor, with costs of the action. From this judgment the defendant appealed to this court. The plaintiff alleges in his complaint that he was one of the supervisors of the town of Oregon, in Dane county, in the year 1887, and that as such supervisor, at the general election held in said town on the 2d of November, 1886, he acted as chairman of the board of inspectors of such election, and was duly qualified as such inspector. It then alleges that, at such election, one John M. Estes was a candidate on the Republican ticket for the office of sheriff of Dane county, and that Phillip Barry was the candidate for such office on the Democratic ticket; that the plaintiff was a member of the Democratic party, and took an active interest in that election; that the defendant was a member of the Republican party, and that he was active in behalf of John M. Estes, the republican candidate for sheriff of said county. The complaint then alleges that the defendant Hayes, wickedly contriving, etc., to injure the plaintiff, etc., and cause it to be suspected and believed by his neighbors and others that the plaintiff was guilty of the offenses and misconduct hereinafter mentioned and charged in a certain conversation, etc., held in said town on the 2d day of November, 1886, concerning the number of votes which had been counted for the said John M. Estes, as sheriff, and the said Phillip Barry, in said town, “falsely and maliciously spoke of and concerning this plaintiff, these false, malicious, and defamatory words; that is to say: ‘He [meaning the plaintiff] counted four of the votes which were cast for Estes [meaning John M. Estes, the candidate for sheriff on the Republican ticket] for Barry for sheriff, [meaning the said Phillip Barry, who was the candidate for sheriff on the Democratic ticket.]’ ” The complaint then alleges that several persons hearing the statement remarked that they did not believe that Ellsworth was that kind of a man, and thereupon the defendant further stated to the persons then present: “It is true; there is no doubt about it. There was a man standing looking right over Mr. Ellsworth's shoulder, and saw him do it. It is a swindle.” The complaint then alleges that the defendant thereby falsely and maliciously charged the plaintiff with having knowingly violated the provisions of the law governing the duties of the inspectors of election, etc. The second cause of action stated in the complaint was for the following statement, made by the defendant on the 6th day of November, 1886, in the village of Oregon, in the presence of divers persons, concerning said election and counting the ballots by the said Ellsworth: “I had been informed by a man who stood right by, and watched Ellsworth count the votes, and he counted four of Estes' votes for Barry for sheriff.” The complaint also charges a repetition of these conversations at other times and places before the commencement of the action. The defendant answered, admitting the fact that plaintiff was one of the inspectors of the election on November 2, 1886, and that he assisted in counting the votes at such election; the candidacy of Estes and Barry for sheriff,--Estes as the Republican, and Barry as the Democratic, candidate. He also admits that the plaintiff was acting with the Democratic party, and he with the Republican party. The answer then makes the following allegation: “Defendant, further answering said complaint, alleges that immediately after the fall election of 1886, in the said village of Oregon, one of the voting precincts at which the said Estes and the said Barry were voted for as candidates for sheriff of Dane county, it was freely, openly, and publicly suggested and charged, by divers and sundry of said electors and tax-payers of said voting precinct, that the said plaintiff had made a mistake in counting the votes cast, at the said voting precinct, for the office of sheriff; that it was freely and openly considered and discussed by said electors, in good faith, the question whether a recount should not be made of said votes, and that the defendant, as one of the electors and tax-payers at said voting precinct, in good faith and with malice towards none, at said time and place, in Monk's hotel, in answer to a question propoundedby one Mr. Patchin, also an elector and tax-payer of said precinct, namely, ‘Hayes, what is there about this vote business?’ Defendant said: ‘All I know about it is what I have heard, and that is this: There was a man who said in my presence, in the post-office, that he saw four votes that had Barry's name scratched off, and Estes' name written on them, and they were counted for Barry; and that he stood right behind Ellsworth when the vote was counted, and he said he noticed that one of the tickets was torn;’ that said Patchin replied...