On Petition eor Behearing
*164Collier, Bernard, Bernard é Edwards and Merwm Bavikin, of Portland, contra.' PER CURIAM.Plaintiff’s first proposition in Ms petition for rehearing is that we erred in holding that at the time of the alleged injury plaintiff was not a business invitee. It is asserted that the transition from the status of invitee to licensee or trespasser can only take place when an injured party removes himself from the physical area to which he was invited and that the cases supporting the text of Corpus Juris Secundum and American Jurisprudence and' the cases we cited are all confined to the so-called area theory and that since plaintiff remained in the same area of the parldng lot where he was invited to park his automobile, he remained an invitee at all times.
There is a wealth of authority that a person may change Ms status even though he remains in the same area to which he was invited. The following cases instruct us that a person’s status may shift to that of a trespasser although he remains in the same area where he was invited to go. Polston v. S. S. Kresge, 324 Mich 575, 37 NW2d 638; Barry v. Southern Pac. Co., 64 Ariz 116, 166 P2d 825, 828; Connelly v. Virginian Ry. Co., 124 W Va 254, 20 SE2d 885; Slaughter v. State, 64 Ga App 423, 13 SE2d 391; Humphrey Co. v. Cohen, 16 Ohio Cir Ct Rep 284, 286; Page v. Town of Newbury, 113 Vt 336, 34 A2d 218; Hurwith v. Shapiro, 334 Ill App 619, 79 NE2d 528.
Plaintiff argues that the defendant would be liable to plaintiff even though he were a licensee and even though the assault was not willful or wanton on the part of defendants if they were guilty of active neg*165ligence, citing Napier v. First Congregational Church of Portland, 157 Or 110, 70 P2d 43 and McHenry v. Howells, 201 Or 697, 272 P2d 210.
The fallacy of the above is that this action is predicated upon the retention by defendants of Waters in their employ after they knew of his vicious propensities. At the most, failure to discharge would be passive negligence.
We recognize that the words “licensee” and ‘ ‘ trespasser ’ ’ have in many cases, both in this and other jurisdictions, been employed in cases of this type as being synonymous. Much loose judicial expression has been employed in dealing with the subject. However, there is a very marked distinction between them. A licensee is one who goes onto land of another with an express or implied invitation for his own pleasure and purposes, while a trespasser is one who enters or remains upon lands in the possession of another unlawfully and without the consent or acquiescence of the owner. See 2 Eestatement of the Law, Torts, § 329, et seq. Some courts permit recovery by a licensee or trespasser for active negligence while others do not permit a trespasser to recover for such negligence. Annotations, 49 ALR 778 and 156 ALR 1221.
In this state we have consistenly held that as to a trespasser, such as we have in the instant case, there can be no liability against the owner of the premises unless the injury was brought about by wanton or willful negligence on his part.
In the early case of Rathbone v. Oregon Ry. Co., 40 Or 225, 66 P 909, where Rathbone and his wife, at the invitation of one of defendant’s section foremen, went with him on a Sunday on a handcar from Eooster Eock to Corbett, a distance of about one and one-half *166railes, to get some cherries. While returning from their jaunt and while passing around a curve in the railroad a collision occurred between the handcar and one of defendant’s trains, whereupon Rathbone was killed. We held that Rathbone was a mere trespasser, and said:
“* * * He consequently had no right to complain of the manner in which the train was made up or the way in which it was operated. These things, so far as he was concerned, were purely within the discretion of the company. Negligence is a breach of a legal duty, and, before any action can be maintained therefor, there must exist some obligation or duty toward the plaintiff that the defendant has left undischarged or unfulfilled. The defendant owed no legal duty to the deceased, except not to wantonly or intentionally injure him because he was wrongfully upon its track or right of way, and therefore it cannot be charged with negligence upon mere proof of the manner in which it ran or managed its train.”
See Haynes v. Oregon-Washington, etc. Co., 77 Or 236, 244, 150 P 286; Kesterson v. California-Oregon Power Co., 114 Or 22, 31, 228 P 1092; Carr v. Oregon-Washington R. R. & Nav. Co., 123 Or 259, 261 P 899.
Plaintiff relies on Holcomb v. Meeds, 173 Kans 321, 246 P2d 239, wherein plaintiff’s decedent, together with his paramour, rented one of defendant’s cabins for a concededly immoral purpose. They met their death as the result of a defectively connected gas heater. The court held that their illegal sortie did not constitute a defense for the wrongful death since their actions had no causal connection with their death. That case and ours do not parallel each other. One cannot equate the actions of an employee, acting without the scope or course of his employment, to that *167of a piece of machinery or equipment. In the Kansas case the defendant at all times had the control of the defective instrumentality while in the case suh judice when defendants’ employee engaged in conduct clearly outside the scope or course of his employment and not within the contemplation of the employer, control and responsibility for his act to the trespasser ceased.
We find no merit in the other points raised.
Petition denied.
Brand, J., for rehearing.