dissenting.
I respectfully dissent.
As pointed out in the majority opinion, both counts of Engmans’ amended petition are posited upon the theory that in entering the apartment to remove the telephone equipment (for non-payment of service) Bell’s serviceman committed a trespass, and that doing so constituted a willful and wanton invasion of the Engmans’ right of privacy.
Notwithstanding the existing tariff provision,1 the majority opinion, as best comprehended, concludes that since Bell’s serviceman intentionally entered the apartment,2 doing so constituted a willful and wanton trespass, and, relying upon Warner v. Southwestern Bell Telephone Company, 428 S.W.2d 596 (Mo.1968), that the tariff provision did not insulate Bell from the willful and wanton conduct committed by its serviceman as opposed to insulation from negligent conduct. In support of its conclusion that the conduct of Bell’s serviceman in “entering” the apartment should be legally characterized as willful and wanton conduct, the majority opinion drew heavily upon Gonzales v. Southwestern Bell Telephone Company, 555 S.W.2d 219 (Tex.Civ.App.1977). Suffice it to say, no tariff provision was involved in Gonzales, much less a tariff provision similar to the one at hand.
Warner v. Southwestern Bell Telephone Company, supra, heavily relied upon in the majority opinion, holds at p. 601, with respect to a general tariff provision appertaining to customer contracts, that such “when . . . filed under authority of law, and unless found to be unreasonable become a part of the law . [and] [i]n this view it makes no difference whether the customer knows of the limitation [tariff provision] or not.” Engmans have failed to cite any Missouri cases judicially denouncing the instant tariff provision as being “unreasonable”.
It is the opinion of this writer that the tariff provision at hand granted Bell a license to enter the Engman apartment for the purpose of removing its equipment upon Engmans’ failure to pay for telephone services rendered. This opinion finds legal support in the remarkably analogous case of Weber v. Indiana Bell Telephone Company, 343 N.E.2d 786 (Ind.App.1976), wherein the Court of Appeals of Indiana, First District, construed a substantially similar tariff provision as granting a telephone utility a license to enter a customer’s premises for purposes delineated in the tariff provision there under judicial scrutiny.
This state has long been committed to the legal principle that an action for trespass will not lie if the alleged trespasser has a license to enter the premises. Seifert v. Withington, 63 Mo. 577, 579 (1876). A recognized exception exists, and properly so, if a licensee exceeds or abuses the scope of his license, Griesenauer v. Emsco Corporation, 399 S.W.2d 147, 151 (Mo.App.1965), an un-*84pleaded theory insofar as the instant case is concerned.
In the ordinary course of events it is quintessential to the exercise of a license to enter the premises of another that the entry be intentional. It defies legal imagination to characterize such intentional entry as willful and wanton conduct within concepts of tort law addressing intentionally inflicted injuries.
I would affirm the judgment of the trial court.
. “Ownership-Equipment, instruments and lines on customers premises, furnished by the Telephone Company, shall be and remain the property of the Telephone Company, whose agents and employees have the right to enter said premises at any reasonable hour for the purpose of installing, inspecting, maintaining or repairing the equipment, instruments and lines for the purpose of making collections from coin boxes and, upon termination of service, for the purpose of removing such equipment, instruments and lines.”
. Engmans do not contend that Bell’s serviceman entered the apartment at an unreasonable hour.