DISSENTING OPINION
No. 20944. Decided July 6, 1948.
By SKEEL, J.This action comes to this court on appeal on questions of law from a judgment for the plaintiff in the common pleas court of Cuyahoga county. Thé plaintiff, Hilda Hoffman, died during the pendency of the action, and lia W. Johnson, Administratrix, was substituted as party plaintiff.
On the 26 day of June, 1944, the deceased went upon the rear porch of her suite, the floor gave way and she fell to the rear porch of the first floor suite directly below.
Hilda Hoffman was ■ a tenant of the defendant in an upstairs suite of a two-family house located at 3496-98 Scranton Road in the City of Cleveland. The defendant lived in Medina County and worked as a shearman at The Republic Steel Corporation. The plaintiff’s decedent had been a librarian and office worker and was away from the property during working hours of the day. It was her habit to mail a check for the rent to the defendant and she would write the defendant a letter in case she wanted to see him and so arrange a definite time when she would be home. About two months before the accident which resulted in her death, some eighteen months later, Hilda Hoffman wrote to the defendant telling him when he could see her and stating that the rear porch of her suite was in need of repairs. About two months prior to receiving this letter the defendant put a railing around the rear porch of the first floor suite and at the same time put some molding around the foot of the posts that supported the rear porch of the second floor suite. The second floor rear porch could be reached only through a door leading to it from the kitchen of such suite. It was therefore for the exclusive use of the second floor suite. The defendant’s testimony upon this part of the case is as follows:
“Q. What'did she say in the letter?
A. She said, ‘come up to look on the porch because porch no good condition.’
*169Q. Did you go over there?
A. I come up next day.
Q. The next day?
A. I come up because she’s home that day. She told me, T be home that day’ because I can’t meet her home because she always some place. I come up in the morning there and I go look on the porch with her. I say, ‘Mrs. Hoffman, no go any more on the porch.’
Q. What is that?
A. I told her not to go any more on the porch because porch is bad condition and I told her I am going to get some man I going to build a new porch and I put a new roof on. She say, ‘that is swell.’ ‘That’s the way I like it be.’ I told her ‘keep the door locked and nobody come to visit on the porch because porch is bad.’ That time I come downstairs I told Mrs. Schley — she tell same way.
Q. Never mind, go ahead— t
A. I go that time to the contractor’s and I told him ‘please do the job for me soon.’ He says T take the job.’ I says ‘do the job soon .as you can.’ Then I go home. Two or three weeks later T come — I don’t know was accident.”
This evidence is corroborated by one of plaintiff’s witnesses, Mrs. Schley, who lived in the first floor suite. She testified as follows:
“Q. Calling your attention to a period shortly before you went to West Virginia — Charleston I believe you said it was, can you tell the court and jury whether or not Mr. Dumech was at the premises making any repairs?
A. Well, I can’t tell you just when. Mr. Dumech was good about that, whenever there were repairs he did them; He tried to do a lot himself. I remember that he told her not to use the porch, that it wasn’t safe. Whether he did the repairs before or after he told her not to use it I can’t say for sure, I can’t—
Q. Now, Mrs. Schley, will you tell the court and jury just what type of repairs Mr. Dumech made to the back porch within a period of a month or two before you left for West Virginia?
A. He had reinforced the one post, — that I remember particularly, — and he mentioned that if — ”
And on cross-examination she said:
“Q. Did you hear him say anything to her about fastening the door so no one could go out?
*170A. I didn’t hear him say anything. He came downstairs and told me that he had warned her about using the porch. I didn’t hear him tell her. Then a half hour or three-quarters of an hour after Mr. Dumech left, she came downstairs and told me the same thing.”
. The only possible theory upon which the plaintiff could recover in this case is that the defendant was negligent in making repairs to the back porch and that such negligence was a proximate cause of the injuries sustained by the decedent. The evidence clearly shows that the landlord was completely out of possession and therefore owed the tenant no legal duty as to the state of repair of the premises. Burdich v. Cheadle et al, 26 Oh St 393.
In the case of Berkowitz v. Winston, 128 Oh St 611, the court said:
“1. Promise by the lessor, to make repairs of premsies leased does not impose' upon the lessor liability in tort .to persons entering thereon at the invitation of the. lessee.
2. Liability in tort is an incident to occupation or control; occupation and control are not reserved by an agreement to make repairs.
3. An owner of real estate, who has surrendered possession thereof to a lessee is not liable to an employee of such lessee for personal injuries resulting from a defective condition of the premises though he had promised the lessee to make repairs.”
A careful examination of the record discloses that at the place where the floor of the porch was attached to the rear of the house the wood had become decayed and rotted so that when the deceased stepped on to the porch the floor broke away from the house and fell.
There is not a scintilla of evidence that the defendant attempted any repairs to this part of the porch. He did attempt to reinforce the posts on the floor of the first floor porch but the evidence is wholly silent as-to any causal relation between such repairs and the falling of the porch.
The record is clear also that the deceased not only knew of the dangerous condition of the porch but also that she was instructed not to use the porch because of its dangerous condition and to lock the door so that it could not be used.
Such being the undisputed evidence, even if there was a showing of negligence in attempted repairs, the deceased would have been guilty of contributory negligence as a matter of law.
For the foregoing reasons the judgment should be reversed and final judgment rendered for defendant appellant.