Billows v. Moors , 162 Mass. 42 ( 1894 )

Morton, J.

The hiring of the plaintiff’s husband by the defendant did not include her, and there is nothing to show that the relation of master and servant existed between the plaintiff and defendant at the time of the injury complained of. When hurt the plaintiff was returning to the basement in the elevator, after having been up to the roof at her husband’s request with Mrs. Nichols to show her where to hang clothes. In going up she used the stairs, and could have done so in coming down. She used the elevator, it may fairly be assumed, for her own convenience; it being easier to lower it to the bottom of the well with some one on it than to haul it down by hand. The question is, what duty, if any, the defendant owed her in regard to the condition of the elevator. The answer depends on what the relation was in which she stood to him. It is plain that she was discharging no duty which she owed to him. Neither was she using the elevator by his invitation, express or implied. It is true that there was testimony tending to show that she had no knowledge of the rule forbidding persons to ride on the elevator, and that she had seen others do it without objection from Curtis. But these facts did not create of themselves any duty or liability on the part of the defendant towards her. If she had been in his employ, they might have furnished justification for what she did, if the locked bar could not be regarded as a notice to every one except those authorized to use it that in using the elevator they did so at their peril.

In going up to the roof with Mrs. Nichols, the plaintiff acted at her husband’s request, and for the purpose of assisting him. In returning the elevator to the basement, she may also have been influenced in part by a desire to assist him. There was no necessity that she should ride down in the elevator, though doubtless it was more convenient to do so. But her husband’s request, and the service which she rendered in consequence of it, could .not, without the knowledge and assent of the defendant, create any liability on his part towards her. The husband bad no authority to bind the defendant, and no obligation arose on the defendant’s part towards her out of the gratuitous, incidental, unauthorized, and unratified service which he received from her through the assistance which she rendered to her husband. We doubt if the plaintiff could be regarded as a licensee. For that would give an express or implied permission, in spite of the apparent prohibition manifested by the locked bar. We think that she is to be regarded rather as a volunteer, using the elevator without any authority or license whatever from the defendant for the purpose of assisting her husband, and that the defendant owed no duty to her to see that the elevator was in a safe condition, but only the duty to abstain from wilful injury to her. ^Exceptions overruled.