Opinion

Malloy v. Fong

  • 37 Cal. 2d 356
  • 232 P.2d 241
  • 1951 Cal. LEXIS 291
Court
California Supreme Court
Filed
Jun 1, 1951
Status
Published
Author
Schauer
On the bench
Schauer, Traynor
Cited by
111 cases
Authority
More cited than 6.8%

“[N]o one is obliged by law to assist a stranger, even though he can do so by a mere word, and without the slightest danger to himself.”

How later courts described this case

  • “[N]o one is obliged by law to assist a stranger, even though he can do so by a mere word, and without the slightest danger to himself.”

Written by the judges who cited it.

Distinguished

  • Distinguished by Van Maanen v. Youth With a Mission-Bishop, 852 F. Supp. 2d 1232 (2012)

    But Malloy is distinguishable because the California Supreme Court relied on the fact that the Presbytery had the right to install and remove its ministers, to approve or disapprove their transfer, and to supervise and control the activities of the local churches, particularly those in the mission stage, like the San Mateo church.
    District Court, E.D. CaliforniaFeb 14, 2012Read it

The opinion

SCHAUER, J.

J. — I concur in the judgment. In so doing I think it proper to note, however, that in my view 1 Fong was a *380 mere volunteer over whose conduct neither Antisdale nor the Presbytery had any authority or right to exercise control and whose negligence cannot be related to them on the theory of respondeat superior. It would follow that the judgment to be entered against the Presbytery as directed by the majority should not stand as against a motion for new trial or an appeal (see Lauritsen v. Goldsmith (1929), 99 Cal.App 671, 676 [ 279 P. 168 ]; Ferran v. Mulcrevy (1935), 9 Cal.App.2d 129, 131-133 [ 48 P.2d 948 ]; Sutherland v. Palme (1949), 93 Cal.App.2d 307, 314-315 [ 208 P.2d 1035 ]; Fortier Trans. Co. v. Union Packing Co. (1950), 96 Cal.App.2d 748, 756-757 [ 216 P.2d 470 ]), for the same reasons which the majority hold require a new trial as to Antisdale, i.e., liability of the Presbytery turns upon liability of Antisdale, and if a new trial is proper as to -the latter it is likewise required as to the Presbytery.

Shenk, J., concurred.

Respondent’s petition for a rehearing was denied June 28, 1951. Shenk, J., and Schauer, J., voted for a rehearing.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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