Thompson v. Clemens

• Decision Date: 15 January 1903
• Citation: 53 A. 919,96 Md. 196
• Parties: THOMPSON v. CLEMENS.
• Court: Maryland Court of Appeals

53 A. 919

96 Md. 196

THOMPSON v. CLEMENS.

Court of Appeals of Maryland

January 15, 1903

Appeal from court of common pleas; Henry D. Harlan, Judge.

Action by Katie M. Thompson against Augustus D. Clemens, Jr. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PEARCE, SCHMUCKER and JONES, JJ.

Gans & Haman, W. Calvin Chesnut, and Stuart S. Janney, for appellant.

Richard Bernard & Son, for appellee.

BOYD J.

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. State, 92 Md. 518, 48 A. 92, 51 L.R.A. 772, we had occasion to determine how far a landlord as a general rule, was liable to a subtenant, and incidentally to a tenant, for injuries sustained by reason of the defective condition of the property; and we held that the landlord was not responsible under the circumstances of that case. From what we there said, it can be seen that a member of a family of the tenant would occupy no better position but it is sought to distinguish this case from that by reason of the fact that there was no contract to repair in that case, while in this it is claimed there was, and in considering that question it will be well to at once see what the record discloses on that subject. The husband of the plaintiff testified that he rented the premises on May 21, 1901, and paid one month's rent; that before doing so he and the appellee went through the house and yard; that he objected to the fence being down, and to some banisters being out of the front porch; that the appellee said, "All is right, but I will fix the fence for you immediately,--next week,--and the front porch; and any necessary repairs I will do." He remained in the property during that month, but no repairs were made. On the 28th of June he told the appellee he was not going to stay there, as he had not fixed the fence, the door had fallen off the hinges, and the back porch was opening. They then went out to the back porch, and he showed him "where the loose place was," and he promised to send a man there the next morning to fix it, and said he would put in a bathtub and fix the fence the following week. He then paid the second month's rent. The porch where the injury occurred was at the kitchen door, and "was about four or five feet square, and elevated about four and one-half feet from the ground." It had a railing on two sides, "four or five steps going down to the yard," and the other side was against the house, about ten inches below the level of the kitchen floor. The platform consisted of boards about four inches wide, laid from a joist on the outside to the house, where they were supported under the weatherboarding by another fastened to the house. He said that the defect in the porch he pointed out to the appellee "was a swelling or bulging of two of the boards on the north end of the porch, which were loose, and when wet they would bulge up and open somewhat near the house, and that he told Mr. Clemens there was danger of some of the children getting hurt, or getting their legs through the opening; that the boards that actually went through with his wife were on the south side of the porch, just opposite the door, and were not the ones that were loose." The appellant testified substantially to the same effect, and added that the appellee said, "Those boards are dangerous, and I will send a man in the morning to fix it." On the 5th of July she was going into the yard, and as she stepped on the platform some of the boards on the south end gave way, and she went through, causing her serious injury; she being at the time in a delicate condition.

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. State, 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 subtenant for personal injuries due to the want of repairs of the property; and after quoting rom Tayl.Landl. & Ten. § 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, 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 Am. & Eng.Enc.Law (2d Ed.) 216, 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, 73 Ill.App. 432; and the same view has been adopted in Schwandt v. Linseed Oil Co., 93 Ill.App. 365, and to some extent in Moore v. Steljes (C.C.) 69 F. 518; Stilwell v. Land Co. (Ky.) 58 S.W. 696, 52 L.R.A. 325; Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620; Campbell v. Sugar Co., 62 Me. 552, 16 Am.Rep. 419; and other cases. The doctrine stated by the Encyclopaedia of Law has been announced in a number of cases cited in note 7 to the above quotation; and in McAdam, Landl. & Ten. 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. Fleischkauer, 26 A.D. 210, 49 N.Y.Supp. 962; Flynn v. Hatton, 43 How.Prac. 333; Spellman v. Bannigan, 36 Hun, 174; Miller v. Rinaldo, 21 Misc.Rep. 470, 47 N.Y.Supp. 636; Sanders v. Smith, 5 Misc.Rep. 1, 25 N.Y.Supp. 125; Tuttle v. Manufacturing Co., 145 Mass. 169, 31 N.E. 465. In the note to Hines v. Wilcox (Tenn.) 33 S.W. 914, 34 L.R.A. 824, 54 Am.St.Rep. 823, there is a valuable collection of authorities on the "liability of landlord for injury to tenant from defect in the premises"; but it is impossible in an opinion of anything like a reasonable length to undertake to discuss the numerous cases on that subject, and it would be useless to...