¶1SEPARATE CONCURRING! OPINION.
¶2In this case, plaintiff pointed out to defendant two places in the walk where the boards were off or loose while the rest of the walk was in seemingly good condition. As one of the conditions of her leasing the property, she required him to repair the walk and he agreed to do so. He failed to perform his agreement and she broke through the walk at a point other than where the defects appeared, though this last fact makes little or no difference so far as defendant’s liability in this ease is concerned.
¶3The facts being as here stated, it is not seen how defendant could be held liable in tort. The very defini*275tion of tort negatives this since the word tort “denotes an injury inflicted otherwise than by a mere breach of contract; or to be more nicely accurate, a tort is one’s disturbance of another in rights which the law has created, either in the absence of contract or in consequence of a relation which a contract has established between the parties.” [Bishop on Non-Contract Law, sec. 4.]
¶4The defendant cannot be held liable for plaintiff’s personal injuries whether the petition be treated as one in tort or as one for damages for breach of contract. There was no covenant on the part of the landlord to heap the walk in a safe condition. Such a covenant would be in the nature of a guaranty that the walk would not be unsafe. He made no such covenant. He merely agreed .to repair. There is a vital distinction between the two agreements. [Miles v. Janvrin, 196 Mass. 431, l. c. 433.] Under the former the tenant would perhaps have a right to rely upon the assurance that the landlord would allow no harm to befall him on account of defects in the walk, and the landlord would be in duty bound to protect him in that regard. This is certainly true if the covenant, by implication, leaves the walk in the landlord’s possession for the purpose of keeping the terms of the contract. But, even in the event of such a covenant, the question might arise whether or not recovery should be on the breach of the covenant to keep in safe condition, rather than on a tort? Under such a covenant or guaranty, the personal injuries resulting from a failure to observe it might be said to be within the contemplation of the parties, and hence recoverable on a breach of that .particular and special covenant.
¶5But a mere agreement or covenant to repair, places no duty upon the landlord to protect the tenant. The latter is still left where the law leaves him. Pie must look out for himself. Unless there is a legal duty resting upon the landlord to protect the tenant from harm, *276he has committed no tort. He has merely violated his contract. In such case, whatever cause, of action the tenant has is only on the contract. He cannot set up a mere contract and recover in tort. It is only when the violation of a contract also creates a tort — that is, violates an obligation which the law imposes upon the relation created by that contract — that a recovery in tort arising from the breach of a contract may be had. In such case, strictly speaking, the contract is not the basis of the tort but is referred to only because it creates the relation out of which the tort-feasor’s duty to the injured one arises.
¶6The petition in this case stated, and the evidence showed, a contract that was nothing more than an agreement or covenant to repair, and not a covenant to keep the walk in a safe condition or a guaranty that it would be safe. Hence, no matter what view may be taken of the petition, plaintiff is not entitled to recover.
¶7The Graff decisions (130 Mo. App. 618 and 145 Mo. App. 364), mention and discuss the rule that a landlord cannot be sued in tort for the breach of a covenant to repair, and seem to give assent to this doctrine. If, however, they violate such rule in their application of the law to the facts in that case, or if the facts in the Graff case are the same as in this one, then the Graff decisions should be no longer followed.
¶8Whatever.may be the situation in that regard, I concur in reversing the judgment in this case.