Ross v. John Hancock Mut. Life Ins. Co.

• Decision Date: 10 February 1916
• Parties: ROSS v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 560

111 N.E. 390

ROSS

v.JOHN HANCOCK MUT. LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 10, 1916.

Exceptions from Superior Court, Suffolk County; George A. Sanderson, Judge.

Action by George A. Ross against the John Hancock Mutual Life Insurance Company. There was a verdict for plaintiff, and defendant excepted. Exceptions overruled.

A. L. Stinson, of Boston, for plaintiff.

Peabody, Arnold, Batchelder & Luther, of Boston, for defendant.

DE COURCY, J.

The plaintiff seeks to recover under R. L. c. 171, § 2, as amended by St. 1907, c. 375 (imposing liability upon a person or corporation for causing the death of a person who is not in his or its employment or service), for the death of his intestate Ella F. Ross. The jury could find the following facts: Miss Ross was an employé of the defendant, and worked on the tenth floor of its building. On December 23, 1913, at about 1 o'clock, her usual lunch hour, she put on her street clothes and entered the elevator, to go to the ninth floor for the purpose of delivering a Christmas present to another employé. While she was in the act of getting off, the elevator was started by the operator and she was caught and fatally injured. The elevator was owned and operated by the defendant. It was conceded that there was competent evidence as to the negligence of the elevator boy and as to the due care of the plaintiff's intestate.

The controlling question is whether the evidence warranted a finding that when the accident occurred Ella F. Ross was not in the ‘employment or service’ of the defendant within the meaning of the statute. Plainly the fact that the plaintiff's intestate was in the general employ of the defendant is not decisive. In this building, occupied by many tenants, she might ride in the elevator in pursuance of her work for the defendant, or she might ride entirely on her own business, as a passenger. Doyle v. Fitchburg Railroad, 162 Mass. 66, 37 N. E. 770,25 L. R. A. 157, 44 Am. St. Rep. 335;Dickinson v. West End Street Ry., 177 Mass. 365, 59 N. E. 60,52 L. R. A. 326, 83 Am. St. Rep. 284;Gooch v. Citizens' Electric Street Railway, 202 Mass. 254, 88 N. E. 591,23 L. R. A. (N. S.) 960. Presumably if, in the execution of her contract of employment, she uniformly had gone down in the elevator on her way to luncheon, and happened to be injured while doing so in the ordinary way, her riding would be a mere incident of her work, an accessory or detail of her contract of employment. Boyle v. Columbia Fire Proofing Co., 182 Mass. 93, 64 N. E. 726; Sundine's Case, 218 Mass. 4, 105 N. E. 433; Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778. Outside of her working hours, however, she had the same right to use the elevator as any of the general public. During the luncheon period her time was her own, and the defendant had no control or authority over her, so far as appears. It could be found that at the time of the accident she was not riding in the elevator on any service for her employer, or as an incident to her employment. She was not necessarily on her way to luncheon, any more than she would have been if the friend to whom she was going was on a floor above her, instead of on one below. Assuming that she...