Ordinarily, there is no liability to such a person for mere passive negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073; Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208, affirming Tex.Civ.App., 156 S.W.2d 1010; Panhandle S.F.R. Co. v. Willoughby, Tex.Civ.App., 58 S.W.2d 563, 565; Davidson v. Gulf etc. Ry. Co., Tex.Civ. App., 136 S.W.2d 923; Gulf Production Co. v. Quisenberry, 128 Tex. 347, 97 S.W.2d 166, affirming Tex.Civ.App., 63 S.W.2d 248; 30 Tex.Jur. 857(175). To an invitee, however, that is, one upon another's premises not merely for his own convenience, but in furtherance of business relations with the occupant which would render his presence of mutual advantage to both, Houston Belt Ry. Co. v. Rogers, Tex.Civ.App., 44 S.W.2d 420; Morten Inv. Co. v. Trevey, Tex.Civ.App., 8 S.W.2d 527, headnotes 19 and 20; 30 Tex.Jur. 861, the occupant owes the duty to exercise reasonable care for the invitee's safety, the duty being the same to an implied as to an express invitee.

Texas courts quote the Restatement with approval but adopt the liberal test of an express or implied invitation. "The most essential factor to be considered in determining this issue [the status of a visitor] is whether the premises were public or private." Carlisle v. J. Weingarten, Inc., Tex.Civ.App. 1941, 120 S.W.2d 886; Id., 137 Tex. 220, 152 S.W.2d 1073. Under Texas law a storeowner who invites the public to his store, knowing that women constitute a heavy percentage of his customers, knowing too that frequently a child will accompany a parent to the store, is "under [an] obligation to extend to the child the protection of an invitee".

If, in attempting to pass through the doorway where he was injured, Lewis, as to Renfro, was no more than a mere licensee, Renfro owed him no duty of care except to not injure him wilfully, wantonly, or through gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073; 38 Am.Jur., p. 765, sec. 104; 65 C.J.S., Negligence, § 35, p. 491; 30 Tex.Jur., p. 857, sec. 175. There is no allegation or proof by Lewis that his injuries were wilfully or wantonly inflicted or resulted from the gross negligence of any of the defendants.

And this duty of reasonable care on the owner has logically been extended to include the children of the customers of potential customers. Walec v. Jersey State Electric Co., 125 N.J.L. 90, 13 A.2d 301 (in which the Fleckenstein case is not even referred to); Pellicot v. Keene, 181 Md. 135, 28 A.2d 826 assumed child was invitee; Custer v. Atlantic Pacific Tea Co., ( D.C. Mun. App.) 43 A.2d 716; Miliken v. Weybosset Pure Food Market, 71 R.I. 312, 44 A.2d 723, (assuming without discussion that plaintiff was invitee) : Wheaton v. Goldblatt Brothers, 295 Ill. App. 618, 15 N.E.2d 64; L.S. Ayres Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334, 41 N.E.2d 195, 356; Carlisle v. J. Weingarten, Inc., ( Tex. Civ. App.) 120 S.W.2d 886; Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356; Gulf Refining Co. v. Moody, 172 Miss. 377, 160 So. 559; Grogan v. O'Keefe's, Inc., 267 Mass. 189, 166 N.E. 721; The Re-statement of Law, Torts, Sec. 332 (D) summarizes the law as follows: "So too, a child taken by a mother or nurse to a shop is a business visitor; and this is so irrespective of whether it is necessary for the customer to take the child with her in order to visit the shop."

Citing, among other authorities, that section of the Restatement, the Supreme Court of Texas has held: "The law places upon the owner or occupant of land the duty to use reasonable care to make and keep the premises safe for the use of persons invited to use the premises for business purposes, Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073; Restatement, Torts, § 343; 38 Am.Jur., Negligence, § 96. * * * "Where the duty to keep premises in a safe condition is imposed on a person in control of them, this duty may include the duty to inspect the premises to discover dangerous conditions, R.E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675, writ refused; Hinthorn v. Benfer, 90 Kan. 731, 136 P. 247, L.R.A. 1915B, 98; Kiehling v. Humes-Deal Co., Mo.App., 16 S.W.2d 637 * *."

Texas has repeatedly declared in one way or another that "* * * the only duty that the defendant owed * * * was not to injure [the licensee] wilfully, wantonly, or through gross negligence." Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074. City of Greenville v. Pitts, 102 Tex. 1, 107 S.W. 50, 14 L.R.A., N.S., 979. Judge, later Chief Justice Hickman, put it: "As to a person occupying that status, the law is well settled that he takes the premises as he finds them, and the owner owes him no duty to maintain same in a reasonably safe condition."

"The principle * * * 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 or benefit of the person using it." Compare Norfolk Tidewater Terminals v. Wood Towing Corp., 4 Cir., 94 F.2d 164; The Santa Barbara (Canton Co. v. Brown), 4 Cir., 299 F. 147; Morse v. Sinclair Automobile Service Corp., 5 Cir., 86 F.2d 298; Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073; Kallum v. Wheeler, 129 Tex. 74, 101 S.W.2d 225; Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105; Swift Co. v. McElroy, Tex.Civ.App., 126 S.W.2d 1040; Henry H. Cross v. Simmons, 8 Cir., 96 F.2d 482. The difficulties in cases involving the point arise not out of the statement but of the application of the rule.

It has been stated that the only duty owed by an owner of property toward a licensee upon such property is the duty not to injure such licensee wilfully, wantonly or through gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073. This rule has been stated in somewhat different language and it is applicable to an occupier of land, who may not be an owner but is entitled to exclusive control thereof. See, Bustillos v. Southwestern Portland Cement Co., Tex.Com.App., 211 S.W. 929; Holt v. Fuller Cotton Oil Co., Tex.Civ.App., 175 S.W.2d 272, wr. ref.; Gonzalez v. Broussard, Tex.Civ.App., 274 S.W.2d 737, ref. n. r. e.; Schroeder v. Texas Pacific Ry. Co., Tex.Civ.App., 243 S.W.2d 261, no wr. hist. Sections 331 and 342, American Law Institute's Restatement of the Law of Torts; 38 Am.Jur. Negligence, §§ 104 and 105; 65 C.J.S. Negligence §§ 32 et seq.

In some of the reported cases, it is said that the duty of the landowner to an invitee is to exercise ordinary care to keep the premises in a reasonably safe condition so that the invitee will not be injured. See Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074; Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, 628, 629; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 615. Where the duty to keep premises in a safe condition is imposed on a person in control of them, this duty may include the duty to inspect the premises to discover dangerous conditions. See R. E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675, wr. ref. (1940); Smith v. Henger, 148 Tex. 465, 226 S.W.2d 425, 20 A.L.R. 853 (1950).

When Driver entered upon the roadway in spite of these warnings, he was wrongfully upon such roadway, and had no legal right to be thereon; therefore, contractor owed Boyd Driver only the duty not to injure him wilfully, wantonly, or through gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073. Petitioner has no pleadings seeking to establish liability on such grounds, nor is any contention made that the evidence would support a recovery thereon.