[1] Instructions of this kind, stating that a plaintiff cannot recover unless he proves that he was without fault and was free from contributory negligence, have generally been held to be prejudicially erroneous. ( Rush v. Lagomarsino, 196 Cal. 308 [ 237 P. 1066]; Lopez v. Knight, 121 Cal.App.2d 387 [ 263 P.2d 452]; Bellows v. City County of San Francisco, 106 Cal.App.2d 57 [ 234 P.2d 729]; Sheridan v. Ravn, 91 Cal.App.2d 112 [ 204 P.2d 644]; Howard v. Worthington, 50 Cal.App. 556 [ 195 P. 709].) [2] Usually, when general instructions are correct and specific instructions addressed to the same point are incorrect, the error cannot be cured.
Such persons enter at their own risk, and the only duty imposed upon the proprietor is to abstain from wilful or wanton injury. ( Sheridan v. Ravn, 91 Cal.App.2d 112 [ 204 P.2d 644]; Fraters v. Keeling, supra.) [6] Where, however, a licensor is aware of a licensee's presence, the licensor is charged with the duty of exercising reasonable care to avoid injuring the licensee by any active or overt act of negligence.
A person who is invited to use only part of another's premises, or to use the premises for a limited, special purpose, becomes a mere licensee if he goes upon other parts to which he is not invited, or uses the premises for some unauthorized purpose of his own. Goldberger v. Market Street Ry. Co., 130 Cal.App. 597, 20 P.2d 351; Napier v. First Congregational Church of Portland, 157 Or. 110, 70 P.2d 43; Bird v. Clover Leaf-Harris Dairy, 102 Utah 330, 125 P.2d 797; Demmer v. City of Eureka, 78 Cal.App.2d 708, 178 P.2d 472; Sheridan v. Ravn, 91 Cal.App.2d 112, 204 P.2d 644. Plaintiff's situation did not measure up to the requirements of the invitee relationship for another reason.
"The principle," says Mr. Campbell in his treatise on negligence, "appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure of the person using it." Coburn v. Village of Swanton, 94 Vt. 168, 172, 109 A 854, 856, 95 Vt. 320, 325, 115 A 153; Manley v. Haus, supra, 113 Vt at page 221, 32 A.2d 668; Lucas v. Kelley, 102 Vt. 173, 176, 147 A 281; Bottum's Admr. v. Hawks, supra, 84 Vt at page 384, 79 A 858; 38 Am Jur, Negligence, § 99, pp. 759-760; CJ Negligence, § 221, p 813; 65 CJS Negligence, § 32, pp. 483-484, § 43[1], p. 508, § 43[3] b, p. 511; 22 Words Phrases 582-584; Sheridan v. Ravn, 91 Cal.App. 112, 204 P.2d 644; Brosman v. Koufman, 294 Mass. 495, 2 N.E.2d 441, 104 ALR 1177; Cook v. 177 Granite St., 95 N.H. 397, 64 A.2d 327; Shaw v. Piel, 139 Me 57, 27 A.2d 137. A person on the premises by invitation may also become a licensee where he uses the premises for purposes or in ways other than those for which they were intended or to which his invitation extends or where he remains on the premises beyond a reasonable time after his invitation has expired.