Boyd, J.,
delivered the opinion of the Court.
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,
92 Md. 518, we had occasion to determine how far a landlord, as a general rule, was liable to a sub-tenant, 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 2 ist, 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 bath tub 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, “ 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 joist'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.
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 on Landlord 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 ten
ant, 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 announciug 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,
73 Ill. App. 432, and the same view has been adopted in
Schwandt
v.
Metzger Co.,
93 Ill. App. 365, and to some extent in
Moore
v.
Steljes,
69 Fed. Rep. 518;
Stilwell
v. S.
L. Land Co.,
52 L. R. A. 325;
Perez
v.
Rabaud,
76 Texas, 191;
Campbell
v.
Portland Sugar Co.,
62 Me. 552, and other cases.
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 Manufacturing Co.,
145 Mass. 169. In the note to
Hines
v.
Wilcox,
34 L. R. A. 824
(96 Term. 148), 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 attempt to reconcile the expressions used in many of them. We have no doubt, however, that no action, either in contract or in tort, by a tenant, or one of his family, against a landlord to recover damages for personal injuries should be sustained
merely because
the latter has been guilty of a breach of contract to make necessary repairs in the premises demised. It is not denied by counsel for the appellant that such damages are too remote, and not in contemplation of the parties, to be recovered in an action
ex contractu,
and to permit a recovery for such damages
based on the contract simply because
it is in form an action of tort would be making a distinction that could not be justified by reason or authority. There must be something more than a mere failure on the part of the landlord to make the repairs he has agreed to make. As was said in
B. & O. R. R. Co.
v.
Pumphrey,
59 Md. 398, “ The suit was brought for a wrong, dependent upon a contract, and the first question we have to decide is, what is the true measure of damages in such a case. It makes no difference whether the form of the action is
ex delicto
or
ex contractu,
the real and substantial gravamen of the complaint is the alleged breach of the contract, and in such a case the same law is applicable to both classes of action. In actions like the present, against common carriers, the suit may be framed either
ex contractu,
upon the breach of the engagement, or
ex delicto,
upon the violation of the public duty ; but whether the action be
assumpsit
on the contract, or case for the violation of duty, the measure of damages is equally a question of law, and as much under the control of the Court as if the right rested in agreement merely.” And in
B. & O. R. R. Co.
v.
Carr,
71 Md. 141, relied on by the appellant, the same doctrine was. in effect announced. That was a suit for the wrongful refusal of the admission of the appellee to the cars of the appellant. This
Court said: “But this is in form an action of tort. Thé contradi-, it is true, entitled the plaintiff to admission to the cars, and gave rise to the duty on-the part of the defendant to allow such admission, under proper circumstances ; but, in cases of the class to which this belongs, the refusal or neglect to perform that duty, as well as the negligent .performance
of it,
furnishes a ground of action in tort. In such case, both the nonfeasance and the misfeasance constitute a wrongful act, for which the remedy may be either by action on the contract or in tort, at the option of the party injured. ” But in passing on the question of damages, we said the rule by which damages are to be estimated is, as a general principle, a question of law to be decided by the Court and “In a case like the present the rule for measuring the damages is fixed and determinate, and should be applied in all cases alike; except in those cases where there may- be malice or circumstances of aggravation in the wrong complained of, for which the damages may be enhanced.” Without citing other authorities it may be conceded that in this State, when a landlord has agreed to make repairs there is
■a.-duty
resting on him to do so, and upon his failure the tenant may either sue on his contract or bring an action on the case founded in tort for neglect of that duty, but as was said in
Pumphrey's case, supra.
“There are many actions nominally in tort, which, in respect to the measure of relief, are treated as virtually
ex contractu,
and in these cases a fixed rule-of damagés is adhered to.” The familiar cases of
U. S. Telegraph Co.
v.
Gildersleeve,
29 Md. 232, and
Hadley v. Baxendale,
9 Exch. 341, were, cited as furnishing the true measure of damages. So it seems to us that the correct rule in a case such as the one under consideration is that the' mere failure of the landlord to make repairs which he had agreed to make cannot make him responsible to the tenant, or a member of his family, for damages for personal injuries sustained by reason of the defective .condition of the premises, whether such suit -be in
assumpsit
or in case, but in order to recover such damages there must be shown some clear act of negligence or misfeasance on the part of the landlord beyond
the mere breach of contract. The declaration seems to have adopted that theory as it alleges that the defendant
“had negligently
failed” to repair the porch. Assuming, as we must as the case is presented, that the appellee had agreed to . make all necessary repairs and that this porch was out of repair, and in consequencs of that the appellant was injured, that of course would not be sufficient to hold the appellee responsible for such injuries. In the first place, it is well settled that as a general rule there must be a notice by the tenant to the landlord of the need of repairs in order to put the latter in default. 18
Ency. of Law
(2 ed.) 229, where a number of cases are cited, including
Cooke
v.
England,
27 Md. 14, and after the landlord is notified he has a reasonable time in which to make them,
Ibid,
230. As to what is a reasonable, time must depend upon circumstances — not only the extent of repairs to be made must be considered, but, what is a much more material question in this case, the apparent necessity for prompt action, and that brings us to what we deem the crucial point in this case, as reflecting upon the question of negligence
vel non
of the appellee, which must determine the right of recovery for the injuries sued for. If the appellee knew of the defect in this porch that caused the injuries, and had reason to believe that it was likely to produce such results if not repaired, then it was negligence on his part, in view of his agreement to repair, not to do so promptly, or at least to take some steps to protect the tenant and his family from injury. Of course whether there could be a recovery, on account of the contributory negligence or other default of the party injured, would present another question, which is not now being considered. But although it is alleged in the first part of the declaration that the defect was “known to the defendant and of which he had specifically been notified theretofore by the plaintiff and her husband,” it is subsequently alleged that it was “entirely unknown to the plaintiff and her husband.” If the latter , was the fact, it was impossible for either of them to have so notified the defendant, and the testimony, which we have already stated, shows that it was not
known to the plaintiff or her husband, and the only notice they or either of them gave the defendant was as to the condition of the north end of the porch where two of the boards were “bulging.-” The plaintiff was injured by the boards at the
south end
giving way, and there was probably no reason for the defendant to suppose that any serious injury was likely to result from the two boards which had been called to his attention, and if there was, the injury complained of was in fact not so .caused. If the use of that part of the porch was dangerous, the plaintiff knew it, and if she had been injured in the use of that would clearly have been guilty of contributory negligence. But although she and her husband had better opportunity to know the real condition of the porch than the defendant had, as they had been living on the premises for more than a month, she seeks to hold the appellee responsible because he promised to send a carpenter there the day after the two boards were called to his attention (June 28th), but had not done so on July 5th, when the accident happened. It was argued that if the appellee had sent the carpenter there he could bave discovered the dangerous condition of the part of the porch that caused the injury. He might or might not, but that is not the test we deem proper to apply in such cases. The question is whether the appellee had reason to believe from the information he received from the plaintiff and her husband, and what he saw himself, that there was such imminent danger in the condition of the porch as to make him responsible for
negligence
in not having it repaired within the week (including a Sunday and a legal holiday) and we think the plaintiff’s proof fell far short of establishing that. If there was reason to suppose that the porch was in such a dangerous condition as to call upon the appellee to take immediate action, why did not the plaintiff and her husband know it ? If she did know its condition, and notwithstanding such knowledge, used it without any more necessity for doing so than is disclosed by this record, then unquestionably she would have been precluded from recovery, on the ground of contributory negligence. But as she and her husband disclaim
all knowledge of the defect that caused the injury, why should the landlord have imputed to him such knowledge as would justify a Court in declaring him guilty of negligence for not sending a carpenter there at once to repair it ? It will not do to say that as he had agreed to make necessary repairs and had had the defective condition of the other end of the porch called to his attention, which he had promised to have repaired the next day, a duty rested on him to have it repaired and having violated that duty
therefore
he is responsible. That would be equivalent to saying that he was liable for such damages as are sought to be recovered in this case simply because he had violated his contract, which we have said was not sufficient. There is no reason for holding landlords to such a harsh rule of law as that. The tenant has the right to make repairs and charge his landlord with the cost of them, when he is under obligation to keep the premises in repair, and when the expense is as trivial as this would likely have been it is his duty to do so, rather than risk the' life or limb of his family.
Middlekauff
v.
Smith,
1 Md. 343;
Biggs
v.
McCurley,
76 Md. 415;
Lawson
v.
Price,
45 Md. 136;
McGinn
v.
French,
107 Wis. 54. If the landlord is under contract to keep the premises in repair, and although notified of the need of them he fails to make them, if the property cannot be safely occupied, the tenant can ordinarily abandon it. If with knowledge of such condition he still remains in the property he, and others having such knowledge, would as a general rule be denied the right to recover, on the ground of contributory negligence, even if the landlord was negligent.
(Decided January 15th, 1903.)
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 ot 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.