# Malloy v. Fong

> California Supreme Court · June 1, 1951 · 37 Cal. 2d 356

URL: https://www.frixlaw.com/law-library/cases/9610463

## Case

- **Full name:** CLINTON MALLOY, a Minor, Etc., Appellant, v. WILLIAM PETER FONG Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** June 1, 1951
- **Citations:** 37 Cal. 2d 356; 232 P.2d 241; 1951 Cal. LEXIS 291
- **Precedential status:** Published
- **Opinion:** Concurrence by Schauer
- **Judges:** Schauer, Traynor
- **Cited by:** 111 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9610463

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9610463. Public record. Not legal advice.