CENTRAL ARIZONA LIGHT & POWER COMPANY, a Corporation, Appellant,
DESSIE MEEK, Guardian of the Persons and Estates of CARL MEEK, MARGARET MEEK, NAOMI MEEK and BETTY RUTH MEEK, Minors, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Fred W. Fickett, Judge. Judgment affirmed.
Messrs. Armstrong, Kramer, Morrison & Roche, for Appellant.
Mr. L. C. McNabb, for Appellee.
[40 Ariz. 257] ROSS, J.
This is an action by Dessie Meek, in her representative capacity as guardian of the
persons and property of her four minor children, against the defendant, Central Arizona Light & Power Company, for the sum of $2,227.87, which she claims was paid to the Kiwanis Club, an unincorporated service organization of Phoenix, Arizona, by contributions of the general public for the use and benefit of said children, but by said club given to and accepted by defendant for its own use.
On August 21, 1928, on West Lincoln Street, Phoenix, Richard L. Miller, his wife and two of their children, and Carl Meek were accidentally electrocuted by coming in contact with a high-tension electric wire of defendant, giving rise to claims for damages against the defendant. Surviving the Miller family were the following minor children: Louise 17, Lawrence 9, Elwyn 4, and Richard 2 years old; and surviving Carl Meek were his wife and the four minor children: Carl 7, Margaret 6, Naomi 5, Betty Ruth 3 years old. The tragic taking off of the parents and the calamitous results to the children immediately awakened in the community a very lively and sympathetic interest in their behalf. This interest took tangible form among the members of the Kiwanis Club, whose membership is made up of business men of Phoenix. Though the news columns of the local newspapers this organization let it be known that it would accept contributions for the relief, use and benefit of the bereaved children, and as a result thereof by November 15, 1928, had collected from the general public the sum of $4,455.75, which sum it deposited with its secretary, C. W. Lindsley, who under instructions from the club on or about that date used said fund to purchase annuities for Lawrence, Elwyn and Richard Miller.
[40 Ariz. 258] Contending that the four Meek children were entitled to one-half of the donations to the club, and that it had been unlawfully diverted by the club and its depository Lindsley to the defendant, and by the defendant applied in the payment of the claims of damages against it made by the personal representative of the several Miller estates, this suit was brought.
The complaint sets out the usual formal allegations and alleges the several deaths in the Meek and Miller families, and that suits for damages against defendant were threatened; the donation by the general public of money for the benefit of the children, in equal proportions; the acceptance of such donations by the Kiwanis Club for the purposes and uses for which it was donated; then, that the trust fund was not divided equally among the eight children but "that the attorneys for the two families, and the attorney for the defendant Central Arizona Light and Power Company negotiated a settlement of the damages which the defendant Central Arizona Light and Power Company agreed to pay the respective parties named herein, and that upon the settlement of the controversy and damages claimed by the parties injured against the defendant Central Arizona Light and Power Company, the said defendant took and received the sum of $4,455.75 donated by the people of the country at large and placed in the hands of the Secretary of the Kiwanis Club of Phoenix, which sum should have been received in equal portions by plaintiff herein and the four orphan children of the Miller family, according to the terms upon which sums were donated, as a gift which the donors intended it to be and which the Kiwanis Club of Phoenix undertook, through its officers, to transfer in equal shares to the two families. That instead of the said $4,455.75 being divided equally between the plaintiff herein and the Miller children, the defendant Central Arizona Light and Power Company took credit and received the said sum of $4,455.75 in the settlement with Jane Kistler, the duly qualified and [40 Ariz. 259] acting guardian of said minors (Miller children) at the time of settlement, and that the defendant Central Arizona Light and Power Company received the entire donation and contribution of the people to the families herein named, and is indebted to plaintiff, by reason of having received said donation, in the sum of $2,227.87."
The answer consists of a general demurrer, general denial, and the following special defenses:
(1) It alleges that the defendant, with the approval of the superior court of Maricopa county, on November 17th, compromised plaintiff's claim of damages for the death of her husband, paying her therefor the sum of $6,500 cash for which she gave defendant her release and receipt as administratrix and guardian, releasing defendant "from any and all actions, causes of actions, suits, controversies, claims, damages, debts and demands of every kind and nature for and by reason of any matter, thing or things, from the beginning of the world to the date of said release, and particularly from all claims, damages and demands accrued or thereafter to accrue, arising out of the accident or injury resulting in the death of said Arthur C. Meek, as hereinbefore described"; that by reason of such compromise and receipt plaintiff was estopped and barred from making any claim whatsoever against defendant.
(2) It alleges that the members of the Kiwanis Club solicited funds for the relief of said children, who were destitute, in the sum of $4,455.75, of which defendant contributed $824.50; that in soliciting said fund the club reserved the discretion of applying the sum for the benefit of the children or such thereof as the club might deem most needy and deserving; that in exercising such discretion it frequently consulted those persons most closely related to such children, including their representatives and the attorneys of plaintiff, and were informed by the latter
that they [40 Ariz. 260] did not wish to participate in the benefits of any annuity which the club intended to procure for said children, or the ones it deemed most needy and deserving, but in lieu thereof requested a certain sum in cash; that the aforesaid sum of $6,500 was paid plaintiff by defendant on the request of the Kiwanis Club in order that the desires of the plaintiff could be met and to enable the club to put into force its plan of relief.
(3) It alleges that the Kiwanis Club did not deliver any part of the $4,455.75 to defendant or use any thereof for defendant's benefit; that it applied said sum in the exercise of its best judgment and ...