162 Mass. 42 | Mass. | 1894
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,
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