dissenting:
I would affirm for the reason that the defendant’s acts come within the language of the burglary statute, which provides that “every person who shall !|! * * willfully, without force, enter any building * * * with intent to commit * * * larceny, or other felony or misdemeanor * * * shall be deemed guilty of burglary * * C.R.S. 1963, 40-3-5. Apparently the majority deems the con*239duct of the defendant and his companion to be not violative of this portion of the statute, and the majority apparently bases its view on the theory that the defendant at the time was an invitee and hence not an actual or constructive trespasser in entering the telephone booth.
From the evidence we know that the defendant and his companion entered the telephone booth with a crowbar with the intention of prying open the coin box and extracting therefrom whatever money was in it. Under these circumstances the defendant did not enjoy the status of an invitee; indeed, he was not even a licensee.
For one to be an invitee he must be on the premises for a purpose connected with the business in which the owner is engaged; there must be some mutuality of interest in the subject to which the visitor’s business relates. A licensee goes upon the premises for his own convenience or pleasure and his presence there is at the owner’s sufferance. Mathias v. Denver Union Terminal, 137 Colo. 224, 323 P.2d 624; Boneau v. Swift & Co., 66 S.W.2d 172 (Mo. App.).
A telephone booth is a building constructed for a business purpose: to communicate by means of wire with some other person some distance from the booth. The person who uses the telephone booth for the purpose for which it is established is an invitee. A person who enters that booth for an unlawful purpose is not such invitee. If one were to seek shelter in inclement weather in a telephone booth, his relationship to the telephone company would be at best that of a mere licensee. One entering in such circumstances as the defendant is a trespasser. He cannot under any circumstances be considered a business visitor.
“Business visitors fall into two classes: First, those who enter upon the premises of another for a purpose connected with the business which the possessor conducts thereon; and, second, those who come upon the premises for a purpose connected with their own busi*240ness which is connected with any purpose, business or otherwise, for which the possessor uses the premises.” Kurre v. Graham Ship By Truck Co., 136 Kan. 356, 15 P.2d 463.
An illustration will show the majority doctrine to be reductio ad absurdum. Let us assume that the telephone and coin box had been negligently attached to the wall of the telephone booth. By reason of its insecure attachment, the use of the apparatus by a number of customers had caused it to work loose to the point that the vibration from the entry of the defendant and his companion caused it to fall upon the foot of the defendant, crushing many of its bones. Could he assert that he enjoyed the status of a business visitor to whom the telephone company owed the duty of not negligently injuring him? Would the telephone company be liable to him for negligence?
There is little in the case of Stowell v. The People, 104 Colo. 255, 90 P.2d 520, which affords the majority the support they appear to find in it. The court was dealing with a charge of breaking and entering and the decision is based on such charge. The present case is not one of breaking and entering; it falls within the language of the statute hereinabove first cited.
Mr. Justice Schauer joins in this dissent.