Malloy v. Fong

Decision Date01 June 1951
Citation232 P.2d 241,37 Cal.2d 356
CourtCalifornia Supreme Court
PartiesMALLOY v. FONG et al. S. F. 18230, 18231

M. Mitchell Bourquin, Healy & Walcom, Jacobs, Blanckenburg & May and John J. Healy, all of San Francisco, for appellant.

Clarence A. Linn, San Francisco, Robert W. Macdonald, Oakland, Dan Hadsell, San Francisco, Roscoe D. Jones, Oakland, Raymond L. Hanson, Cooley, Crowley & Gaither and Louis V. Crowley, all of San Francisco, for respondents.

TRAYNOR, Justice.

Plaintiff brought this action for damages for personal injuries allegedly caused by the concurrent negligence of defendants Holmes, Fong, and Antisdale. Plaintiff alleged that Fong and Antisdale were acting as agents of defendant Presbytery of San Francisco. The jury exonerated defendant Holmes, but returned a verdict in favor of plaintiff in the amount of $41,500 against defendants Fong, Antisdale, and the Presbytery of San Francisco. On motion of defendant Presbytery, the trial court entered a judgment notwithstanding the verdict as to it. Defendant Antisdale's motion for new trial was granted. Defendant Fong's motion for judgment notwithstanding the verdict was denied. Plaintiff appeals from the order granting a new trial as to defendant Antisdale and from that part of the judgment that denies recovery against the Presbytery. Defendant Fong has not appealed.

During the summer vacation of 1943, plaintiff, then a boy of thirteen, attended a vacation Bible school conducted at the San Mateo Presbyterian Church for the children of members of the Church, then a 'mission' under the jurisdiction of defendant Presbytery of San Francisco. Defendant Antisdale, pastor of the Church, was in charge of the school and gave the Bible instruction. The Bible classes were supplemented by classes in arts and crafts and by supervised recreation at a nearby playground to which the children were taken in automobiles and from which they were returned to the Church at the conclusion of the recreation period.

Antisdale became ill several days before July 1, 1943, the day plaintiff was injured, and was unable to conduct the school. It was therefore left without effective supervision and without an instructor qualified to conduct the Bible classes. Defendant Fong, a 19-year-old divinity student, was at that time vacationing at the home of his guardian, Dr. Jones, a retired Presbyterian minister, in San Mateo. Fong agreed to conduct the Bible instruction in Antisdale's absence so that Antisdale might stay home and rest. In addition to conducting the Bible classes, Fong drove the children to the playground for their recreation period in his guardian's automobile, a Ford station wagon lent to him for that purpose.

Antisdale returned to the Church on the day of the accident, but he was occupied in his office the greater part of the morning, and Fong remained in charge of the class. At the conclusion of the Bible instruction, Fong released the children to wait outside the Church for transportation to the playground for the recreation period. Antisdale emerged from his office to see the children climbing into Fong's station wagon and several boys, including plaintiff, standing on the running boards. Antisdale then informed the children that he would take some of them in his car to relieve the congestion in the station wagon, and several of them entered the back seat of his car. Two of the boys left Fong's station wagon and stood on the running boards of Antisdale's car. The other children remained in Fong's station wagon, plaintiff standing on the left running board and another boy standing on the right running board. Antisdale testified that he ordered the children off the running boards. It is undisputed, however, that Antisdale did not insist on compliance with his order and that the children continued to stand on the running boards of his car and Fong's.

The Church was located on Twenty-fifth Avenue in San Mateo, a street running east and west; the playground to which the children were being taken was located on Twenty-eighth Avenue, several blocks west of the Church. Twenty-eighth Avenue is interesected east of the playground by Isabelle Avenue, a street running north and south. The two vehicles left for the playground, driving west on Twenty-fifth Avenue, Antisdale's car in the lead, closely followed by Fong's station wagon. They then turned south to Twenty-eighth Avenue and again headed west toward the playground. During the trip the children in each vehicle were shouting and challenging the children in the other vehicle to a race to the playground. Although the evidence is conflicting on this point, there is testimony that Fong and Antisdale entered into the spirit of the competition and increased the speed of their vehicles. After the vehicles turned west on Twenty-eighth Avenue, Fong pulled out to the left and endeavored to pass Antisdale, who increased the speed of his car to prevent Fong from passing. Fong pulled up parallel to Antisdale but was unable to pass him because Antisdale had increased his speed. Twenty-eighth Avenue has only one lane for vehicular traffic proceeding in each direction, so that Fong's station wagon during the time he was attempting to pass Antisdale was being driven well over in the left-hand lane, almost to the opposite curb. The two vehicles approached the intersection of Twenty-eighth and Isabelle Avenues in that position, Fong still unsuccessfully attempting to pass Antisdale. Antisdale stopped his car at the intersection, but Fong proceeded out into the intersection at an excessive rate of speed, still on the left-hand side of the road. Defendant Holmes was driving her car north on Isabelle Avenue and had just pulled out into the intersection when Fong drove by her. The vehicles were too close for her to stop in time and, according to her testimony, Fong made no effort to stop. Her right front fender and Fong's station wagon collided, striking plaintiff standing on the left running board. As a result of the collision, plaintiff lost his left leg below the knee and sustained injuries of a permanently disabling nature to his right leg, necessitating prolonged hospitalization and medical treatment.

Plaintiff's complaint was in three counts. In the first count he alleged that Fong was the agent of Antisdale and the Presbytery, that he was a passenger in Fong's car at the time of the accident, and that the accident was caused by the concurrent negligence of defendants Fong and Holmes. In the second count he alleged that Antisdale was the agent of the Presbytery, and that his engligence was a cause of the injuries to plaintiff in that he 'negligently and carelessly increased the speed of his said Chevrolet sedan automobile, so as to render it impossible for said Ford Station Wagon (driven by Fong), in which plaintiff was riding, to pass and return to the right side of the roadway, so that the two (2) vehicles ran abreast in to the intersection of said 28th Avenue with Isabelle Avenue, proximately causing and precipitating a collision between said Ford Station Wagon in which plaintiff was riding and that said Chevrolet sedan automobile being driven by defendant Eleanor Holmes.' In the third count, plaintiff alleged that Antisdale and Fong were negligent for the safety of the children for whom for the saferty of the children for whom they were responsible in that they negligently permitted several of them, including plaintiff, to ride on the running boards of the two vehicles, and that such negligence was a proximate cause of plaintiff's injuries.

Defendants Antisdale, Fong, and Holmes answered, denying negligence and pleading that plaintiff was contributively negligent. Defendant Presbytery denied that Fong was the agent of Antisdale, or that either of them was its agent, or that plaintiff was a passenger in Fong's station wagon. It pleaded three defendes: (1) that plaintiff was contributively negligent; (2) that the sole cause of the accident was the negligence of defendant Holmes; and (3) that it is a charitable corporation, engaged solely in the propagation of religion and 'does not contemplate the distribution of gains, profits or dividends to its members, and that at no time has it engaged in any activity other than the propagation of religion. That this defendant has at all times exercised due and reasonable care in the selection of its servants and agents.'

Plaintiff contends that there is substantian evidence to support the verdict of the jury, that there were neither errors of law nor irregularity in the proceedings at the trial, and that the trial court improperly granted defendants' motions for judgment notwithstanding the verdict and for a new trial. In support of the judgment notwithstanding the verdict, the Presbytery contends that, as a charitable corporation, it is not liable to non-paying beneficiaries for the torts of its agents, and that, as a matter of law, neither Fong nor Antisdale were its agents at the time of the accident. In support of the order granting a new trial, Antisdale contends that the trial court committed error in the giving of two instructions: one, that the jury could find against Antisdale if they found that Fong was his agent and was negligent; the other, that a verdict might be returned against Fong and against Antisdale as his principal, even though the jury found Fong guilty only of ordinary or gross negligence, if it also found that plaintiff was a passenger and not a guest in Fong's station wagon. Antisdale contends that, as a matter of law, Fong was not his agent and plaintiff was a guest in Fong's station wagon, and that the instructions were therefore prejudicially erroneous in that they submitted to the jury as a question of fact a matter that was one of law and 'at the least permitted the jury to find such a relation' when in fact none existed. Edwards v. Freeman, 34 Cal.2d 589, 594, 212 P.2d 883, 886.

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