¶1Unless Hall v. Capps, 52 Ga. App. 150, supra, is overruled, the law of this State is settled that one who comes on the premises of another not “for a purpose connected with the business in which the occupant is engaged” and without “mutuality of interest in the subject to which the visitor’s business relates” is a licensee regardless of whether the ■owner’s invitation to come is express or implied. This ruling by Judge Jenkins has been explicitly followed by Judge Jordan in Stanton v. Grubb, 114 Ga. App. 350, supra, and by Judge Hall in Laurens v. Rush, 116 Ga. App. 65, supra. I do not consider any of the other cited cases absolutely controlling. “Business” as used in these cases clearly refers to pecuniary gain. It might easily have had a broader significance, as witness Griffin v. Russell, 144 Ga. 275 (87 SE 10, LRA 1916F 216, AC 1917D 994), the parent case for the family-car doctrine, which held that “defendant might properly make it an element of his business to provide pleasures for his family” (p. 282), so that a minor child using the car for her own pleasure with the father’s permission was engaged in his “business.” Judge Lumpkin commented: “The word ‘business’ is commonly employed in connection with an occupation for livelihood or profit, but it is not limited to such pursuits. When Jesus said, ‘Wist ye not that I must be about my Father’s business?’ He had no reference to matters involving pecuniary rewards.” P. 278.
¶2It occurs to me that the language of Code § 105-401 making *412an owner liable for those on his lands “for any lawful purpose” and “by express or implied invitation” was not originally intended to limit the invitation to business activities in the literal sense. My reason is that Code § 105-401 was codified from Atlanta Cotton Seed Oil Mills v. Coffey, 80 Ga. 145 (4 SE 759, 12 ASR 244). In that case, although the defendant ran a business, he was not engaged in business with the plaintiff who had applied for and been granted permission by him to remove some waste material gratis for use in an orphan’s home. Judge Simmons quoted from Cooley on Torts the language which is now Code § 105-401 and added: “Judge Cooley . . . says that when one 'expressly or by implication, invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.’ ” P. 148. In the Coffeycase two things should be noted: (1) it was based on negligence in the use of property, in that an acid became dissolved in mud or water and injured a horse’s hooves, and (2) the plaintiff was invited on the premises but only for his own benefit. I would therefore be willing to apply Code § 105-401 in the sense in which I think it was intended with the result that lack of ordinary care would render the owner liable to an express invitee, whether a social guest or otherwise.
¶3I agree with the majority opinion that plaintiff cannot recover under the licensee theory, but think he should be entitled to go to a jury under the theory that plaintiff might be able to prove the lack of ordinary care to which I think he should be entitled.