Hallinan v. Hearst

McFARLAND, J. This is an action at law for money had and received, brought by plaintiff, through his guardian, against the defendant Hearst. Judgment went against the plaintiff, and he appeals from the judgment and from an order denying his motion for a new trial. The main features of the case are these: On June 6, 1897, Timothy Hallinan, [593]John Moholy and Frank Keller, who were firemen, lost their lives in the performance of their duty in a fire in San Francisco. Immediately afterward the respondent Hearst, through his newspaper, the “Examiner,” commenced to solicit contributions for the benefit of the families and dependents of these deceased firemen, and he himself gave $200 to the fund. In the articles published in the “Examiner” on the subject, and in letters written by some of the contributors, there were general expressions about the purposes intended, of which the following are fair samples: “In aid of the families of the firemen killed,” “to assist those dependent upon the firemen,” “those whom they supported,” “for the benefit of the dependent relatives of these firemen,” “for the families of the brave firemen,” “for the relatives of firemen heroes,” etc. There is nothing more specific or definite on the subject than is to be gathered from the foregoing expressions. Under these circumstances contributions in money were made by numerous persons to the respondent, the aggregate amount of which was $5,905.25, and respondent charges himself in an additional sum of $114.20 for interest, etc. The appellant, who is quite a young boy, is the only child and the only member of the family of the deceased fireman Hallinan, and he made demand of respondent that he pay over to appellant the one-third of said money. Respondent refused to comply with the demand, and thereupon this action was commenced.

It appears that respondent sought the advice of three well-known gentlemen of the city as to the manner in which he should distribute the money as aforesaid. They made a written report to him in which they advised him to place one-third of the money in trust in one of the trust companies of the city, to be paid to appellant at his majority. They gave the same advice as to the minor children of the deceased fireman Moholy; and as to the other deceased fireman, Keller, they advised that the remaining third be immediately distributed to his two sisters and the lady to whom he was engaged to be married, they being all of legal age. They also advised that, if either of the above-named minors should die before majority, his share should go to the charitable Fund Association of the San Francisco Fire Department. In accordance with this advice, respondent paid one-third of the money to the sisters and fiancee of Keller, and is ready to