(concurring specially).
I am in accord that the judgment appealed from should be reversed and the cause remanded.
However, in arriving at my conclusion, I limit myself to consideration of the issues raised by the motion for summary judgment and the ruling of the trial court thereon.
As I understand the motion, it asserts that defendant was entitled to judgment because there was no genuine issue of material fact as between the parties in that plaintiff, at the time of her injury, was on the premises of defendant as a trespasser or bare licensee, as a volunteer, or to assist her husband, and that there is no duty owing to her except not to wilfully or wantonly injure her if she was a trespasser or bare licensee.
I do not see any real issue of fact present concerning the status of plaintiff on the premises. If plaintiff’s husband was a subcontractor, and she was an employee of his she was an invitee on the premises, and defendant owed her a duty of due care to supply her a safe place to work. See cases cited in note in 20 A.L.R.2d 868, 873.
On the other hand, it is clear that if her husband was not a subcontractor, but an employee of defendant, he had authority to have plaintiff assist him, and if he did, she was not a trespasser, bare licensee, or mere volunteer, but was an invitee. Compare Bogart v. Hester, 66 N.M. 311, 347 P. 2d 327, where the employer was held liable because of a lack of authority in the employee to create any type of relationship between the claimant and the employer.
Whether the ordinance sued upon made defendant negligent as a matter of law does not appear to have been within the matters raised by the motion for summary judgment, and we should express no opinion on it.
On the other hand, plaintiff being present by authority of her husband as an independent contractor, or by virtue of authority from his employer, the court was wrong in determining that her claim should be dismissed on any of the grounds stated in the motion.
It follows that the motion should have been overruled and, accordingly, the judgment appealed from should be reversed and the cause remanded to the trial court.