53 A. 919 | Md. | 1903
The appellant sued the appellee for injuries sustained by her in falling through the floor of a porch attached to a house rented by her husband from the appellee. The declaration alleges that the defendant had promised "to keep and maintain the premises in good, safe and perfect condition," and that the porch, on account of its defective condition, known to the defendant and of which he had been specifically notified, and which he had in consideration of further payment of rent promised to repair, but negligently failed to do so, gave way so that the plaintiff fell through the opening and sustained serious injuries. At the conclusion of the plaintiff's testimony the Court granted a prayer that there was no evidence legally sufficient to entitle the plaintiff to recover under the pleadings.
In the case of Smith v. Walsh,
Having thus stated such of the facts as are necessary to show the undertaking of the appellee, we will determine what his responsibility to the appellant was. It is contended for her that he assumed the risk of damages sustained by the tenant, or his family, due to the condition of this porch, while the appellee contends that "a landlord who has covenanted to repair is not liable in tort for personal injuries resulting from the want of repair." The appellant's attorneys, if we understand the position taken by them, concede that such damages are not recoverable in an action ex contractu, on the contract to repair, but say this is "an action on the case founded on the negligent failure of the landlord to perform a duty which he had assumed by the terms of the letting. The fact that that duty has its foundation in the contract does not preclude the plaintiff from suing in tort." They contend that this Court has in the case of Smith v.Walsh impliedly recognized the right of the tenant, or a member of his family, to sue for such injuries, when by the terms of the lease there is a duty resting on the landlord to make repairs. In that case we held that the landlord was not liable to the tenant, or the sub-tenant, for personal injuries due to the want of repairs of the property and after quoting from Taylor onLandlord and Tenant, sec. 175A, and referring to other authorities, we said "The reason of the rule is perfectly apparent. If the lessee knows the condition of the premises and rents it without requiring the owner to repair it, he takes it as he finds it and has no right to complain of injuries sustained on account of its condition. The owner not being compelled to keep it in repair, if the tenant desires to require that of him, he should so bind him by contract. In the absence of that he must protect himself against dangers which are apparent to him." We were not called upon in that case to determine whether damages for personal injuries could be recovered by the tenant, *206
or any one on the premises under the tenant's right, when the landlord was under contract to make the repairs, but many of the decisions we there referred to, and others that might be cited, in announcing the general rule as to the landlord's liability to the tenant, do qualify it by referring to the absence of an agreement on the part of the landlord to repair, and imply that when there is such an agreement the landlord may be liable to damages for personal injuries, at least under some circumstances. In 18 Ency. of Law (2 ed.) 216, title Landlord and Tenant, it is said, "that in the absence of any agreement on the part of the landlord to repair, a tenant cannot recover from the landlord the costs of repairs made by him, nor can the tenant recover from the landlord for injuries to his property or person, or to the property or person of his family, caused by the defective condition of the demised premises," but on page 234 of that volume it is stated that "Damages for personal injuries to the tenant resulting from the failure of the landlord to repair are deemed too remote and consequential, and not in contemplation of the parties, and therefore not recoverable, though in an Illinois case a recovery for such injuries has been allowed." The case referred to is Sontag v. O'Hare,
The doctrine stated by the Encyclopedia of Law has been announced in a number of cases cited in note 7 to the above quotation, and in McAdam on Landlord and Tenant, 438, it is said "a landlord who has covenanted to repair is not liable in tort for personal injuries resulting from the want of repair," citing Shick v. Fleischhaur, 26 N.Y. App. Div. 210; Flynn
v. Hatton, 43 How. Pr. 333; Spellman v. Bannigan, 36 Hun. 174; Miller v. Rinaldo, 21 Misc. (N.Y.) 470; Sanders v.Smith, 5 Misc. (N.Y.) 1; Tuttle v. Gilbert ManufacturingCo.,
So, although we are of opinion that a landlord, under contract to repair, may under some circumstances be liable for damages for personal injuries by reason of a negligent failure to make repairs, his negligence must be clearly established as the foundation for such liability, and under the facts disclosed by this record there was not such legally sufficient evidence of it as would have justified the Court below in submitting the case to the jury, and therefore without discussing the question of the contributory negligence of the plaintiff, we will affirm the judgment. Judgment affirmed, the appellant to pay the costs.
(Decided January 15th, 1903.) *212