State v. Houston , 83 Ala. 361 ( 1887 )

CLOPTON, J.

— All the questions presented by the record, except two, were decided on the former appeal. The general charge of the court, and the ruling in respect to giving and refusing instructions to the jury requested by the parties, conform to the principles then declared as applicable and governing the case. — State v. Houston, 78 Ala. 576.

The plaintiff requested the court to' instruct the jury, that if the tax-collector obtained the money from the safe in which it was deposited, about' nine or ten o’clock on the morning of the day on which he was robbed, and had it in large envelopes in the side-pocket of his coat, and, with the money in the envelopes, walked about the town of Court-land until about two o’clock in the afternoon, he was guilty of negligence, which would make him liable in this action. Generally, whether due care and diligence have been observed, is a mingled question of law and fact, and, in all cases of doubt, must be committed to the jury. When the facts are admitted, or undisputed, and the inferences from them are indisputable, or the rule of duty is fixed by law as the same under all similar circumstances, negligence is a question for the decision of the court; but, though the facts are undisputed, when negligence is a deduction to be drawn, and which may or may not be drawn, by men equally sensible and impartial, the question must Ido submitted to the jury. — A. G. S. R. R. Co. v. Jones, 71 Ala. 487; City Council of Montgomery v. Wright, 72 Ala. 411. Conceding that, if the money had been lost while the collector was thus carrying it about Courtland, it would have been regarded as lost by his negligence, such negligence would not make him liable in this action, unless it contributed to the subsequent loss by robbery. It is manifest that this is an inference to be drawn from all the circumstances in proof; and that the court could not, as matter of law, decide that the facts stated in the charge were negligence, such as, per se, would make the defendant liable in this suit.

It now appears from the record that the collector was carrying the money to Moulton, not only to pay the balance due on the warrant in favor of the county superintendent of education, but also the amount of poll-tax collected. It is insisted, that the money collected for the poll-tax is not the property of the State; and as the collector subsequently paid this amount out of other moneys collected by him as taxes, the defendants are liable for the amount so paid. The poll-tax is levied by the State, assessed and collected by its officers, and applied by the legislature in aid of the public school fund, in obedience to the mandate' of the constitution. By the statute, the collector was required, at the end of each month, to pay to the county superintendent of education the amount of the poll-tax collected during the month. The statute does not require him to keep the money collected for poll-tax separate from moneys collected for other State taxes; nor to pay the specific money collected to the county superintendent. The statutes designate the officers to whom payment shall be made, and whose receipt shall be a voucher for the tax-collector on his settlement with the auditor, and only requires him to pay the amount of the poll-tax collected. While in the hands of the collector, before payment to the county superintendent of education, the legally appointed officer to receive and disburse it, the money collected for poll-tax is as much the property of the State, as money collected for taxes levied on real or personal property, a part of which the constitution commands shall be applied to the support and maintenance of public schools. If the collector did not carry more money than was sufficient to pay both the warrant and the amount of poll-tax collected, he was not guilty of negligence in this regal'd.

Affirmed.