The question presented to this court is whether the plaintiff was a business invitee or merely a licensee at the time when he fell into the excavation and was injured.
It is agreed that the plaintiff was not required by his contract to visit the construction site on a Sunday evening when no work was in progress and no other person was present on the premises. It is agreed that no work was done on Sunday. It is agreed that there was no express or implied request by the defendant that plaintiff visit the construction site on Sunday evening at dusk. There is nothing in the record which would indicate that the defendant had any reason to know that the plaintiff would visit the construction site at dusk on that Sunday evening.
The plaintiff makes no contention that the defendant was liable under Sections 4101.11 and 4101.12 of the Revised Code (frequenter statutes). Plaintiff makes no claim that he was a frequenter.
Sections 4101.11 and 4101.12, supra, are not applicable in this case. The premises were obviously not a place of employment on Sunday evening. No work was being performed.
The plaintiff relies solely upon the claim that he was a business invitee of the defendant.
The plaintiff maintains that his visit was for the benefit of the defendant, on the ground that the defendant was urging him to complete his subcontract as quickly as possible, and oh the further ground that, if the defendant’s contract with the owner, the General Electric Coi'poration, was completed at a cost below the guaranteed maximum, the defendant was to receive 25% of the savings below that guaranteed maximum, and the General Electric Corporation was to receive 75% of such savin ers.
The weakness in plaintiff’s position is that the plaintiff’s subcontract with the defendant called for a unit-price contract under which the amount to be paid to plaintiff by the defendant was computed upon the amount of earth moved, rather than on the time snout.
In addition to that, the time limit in the defendant’s contract with the General Electric Corporation did not begin to run until the structural steel was erected.
*172It appears that the plaintiff went to the construction site at dusk on Sunday evening for his own benefit. This is substantiated by his testimony that, if the rain had been heavy enough to prevent efficient work the following day, he could call the person from whom he rented the equipment and request that no men be sent to the job the next morning, thus saving himself the cost of renting the equipment for that day and the cost of wages of the men.
He testified further that he could divert some of his own equipment to other areas where he had jobs, thus making an additional saving for himself.
The record does not support the plaintiff’s position that his trip to the construction site on Sunday evening was for the benefit of the defendant, or that it was required by his contract with the defendant, or that it was requested by the defendant, or that the defendant had knowledge that he intended to make such a trip. The plaintiff was not a business invitee to this construction site at that time, but a licensee. Scheurer v. Trustees of The Open Bible Church, 175 Ohio St. 163; Scheibel v. Lipton, 156 Ohio St. 308; Keesecker v. G. M. McKelvey Co., 141 Ohio St. 162, 166.
The defendant owed to this plaintiff-licensee the duty not to injure him by willful or wanton misconduct or any affirmative act of negligence. Scheurer v. Trustees of The Open Bible Church, supra; Soles, Admr., v. Ohio Edison Co., 144 Ohio St. 373; Hicks v. Village of Cortland, 123 Ohio St. 114, 117; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Potter, 113 Ohio St. 591; Hannan, Admr., v. Ehrlich, 102 Ohio St. 176; John v. Reick-McJunkin Dairy Co., 281 Pa. 543, 127 A. 143; 65 Corpus Juris Secundum 491 to 504, Sections 35 to 38.
Plaintiff does not claim that there was a hidden trap or any violation of a duty concerning the condition of the premises prescribed by statute, ordinance or safety regulations for the benefit of the plaintiff.
The defendant did not know of the plaintiff’s presence on the premises and had no opportunity to warn him of any danger. Scheurer v. Trustees of The Open Bible Church, supra, paragraph two of the syllabus.
The determination of this question requires a reversal of *173the judgment of the Court of Appeals, and it is unnecessary to consider any other alleged errors.
The judgment of the Court of Appeals is, therefore, reversed and final judgment is rendered for the defendant.
Judgment reversed.
Taft, C. J., Zimmerman and Schneider, JJ., concur. Matthias, Herbert and Brown, JJ., dissent.