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change a situation and a force issues from them."7 ii. A takes the control of B's propit to the hurt of B.13 iv. A deflects a nat erty away from him and B is hurt in getural force to the hurt of B.14

ting control back. 18 iii. A induces a de3. When an act or an omission compels

fensive act on the part of B.19 iv. A ator allows the control of an animal to be

tracts B into a dangerous situation to the taken from the person who has such con

| hurt of B.20 V. A creates a dangerous force trol, and that animal is injured, through its

which В fails to neutralize.21 vi. A creates own acts or injures another animal or a

a dangerous situation which deflects the person, that act or omission is a proximate

activity of B against B.92 vii. A creates a cause of the injury. Examples of this are:

dangerous situation and fails to keep B i. A removes control of the animal from B

away from it.23 viii. A induces B to act.24 and the animal is hurt.15 ii. A removes the

ix. A fails to prevent the activity of B.25 control of the animal from B and the ani Before enunciating the legal principle mal injures another.16

which will help the jury to a decision in 4. When an act induces the activity of a

cases where acts of a third party have conperson and that activity contributes to the

tributed in conjunction with the acts of the injury of the person or when an act creates

defendant to the injury of the plaintiff, I a dangerous situation and a person is hurt

wish to indicate all the possible ways in by coming into contact with that situation

which the defendant can utilize the third through his own lawful activity, or when

party to the hurt of the plaintiff. These an omission fails to keep a person from

ways are as follows: 1. A drives B into T; coming into contact with a situation or

2. A drives T into B; 3. A creates an active force, and that situation or force contrib

force and compels T to play it upon B; utes, in conjunction with the lawful activ

4. A creates an active force and compels T ity of the person, to the injuring of that

to drive B into it; 5. A creates a situation person, such an act or omission is the prox

and makes T drive B into it; 6. A creates imate cause of the injury. Examples of

a situation and T drives it against B; 7. A this are: i. A creates dangerous alternatives

| creates a situation and compels T to drive it and compels or induces B to choose between

(17) Regina v. Pitts, 1 C. & M. 284; Jones v.

Boyce, Stark 493; Tuttle v. Atlantic City R. R. The Corporation of the Trinity House, R. 5 Ex. Co., 66 N. J. L. 327; Illinois Central R. R. Co. v. 204; Kuhn v. Jewett, 32 N. J. Eq. 647; E. T. Ide | Siler, 229 Ill. 390; Hendrickson v. Commonv. B. & M. R. R., 83 Vt. 66.

wealth, 85 Ky. 281: Chambers v. Carrol, 199 Pa. (13) Detzur v. B. Stroh Brewing Co., 19 Mich. 371. 282.

(18) Bennett v. Lockwood, 20 Wendell 223; (14) Cheever v. Danielly, so Ga. 114.

Page v. Bucksport, 46 Mo. 56; Lowry v. Manhat(15) Sneeby v. Lancashire & Yorkshire Rail

tan Railway Co., 99 N. Y. 158. way Co., L. R. 9 Q. B. 263; West v. Ward, 77 Ia. (19) Eckhardt v. Long Island R. R., 43 N. Y. 322; Gilman v. Noyes, 57 N. H. 627, contra. (But 502; Lowry v. Manhattan Railway Co., 99 N. Y. it is based on the express point that the jury 158. did not have a chance to say whether the injur (20) Harold v. Watney, 1898, 2 Q. B. 320. ing power, namely, wild bears, could have been (21) Regina v. Holland, 2 Moody v. Robinson, anticipated or not.) Kelsey v. Rebuzzini, 80 351; St. Louis and San Francisco R. R. Co. v. Atl. Rep. 170, contra.

League, 71 Kan. 79. (16) McDonald v. Snelling, 14 All. 290; Belk

(22) Rollins v. Central Maine Power Co., 88

Atl. Rep. 86; City of Louisville v. Hart, 142 Ky. v. People, 125 III. 584; Isham v. Dow, 70 Vt. 588;

171. Towaliger Falls Power Co. v. Sims, 6 Ga. App. 749. (But this case really goes on the ground

(23) Burk v. Creamery Package Mfg. Co., that the defendant maintained a nuisance.) For

126 Ia. 730; Bell V., Rocheford, 78 Neb. 310; the converse, see Eberhardt v. Glasco Mutual

Woodson v. Metropolitan Street Railway Co., 24 Telephone Association, 139 Pac. Rep. 486. (Note

Mo. 685; Munsey v. Webb, 231 C. S. 150; Ehrgott ---Here the defendant did not take the control

v. Mayor of City of N. Y., 96 N. Y. 264. of the animal out of the proper party's hands

(24) Rex v. De Marny, 1907, 1 K. B. 388; Peoand was not held liable for the injuries caused.

ple v. Lewis, 124 Cal. 551. There are many such converse cases in the

(25) A., T. & Santa Fe R. R. V. Parry. 67 books.)

Kan. 515.

against B; 8. A compels T to drive B into , in part.31 vii. A induces T to create a an active force not created by A; 9. A com dangerous situation which hurts B.82 viii. A pels T to drive B into a situation not cre- holds B in danger and compels T to hurt ated by A; 10. A compels T to play an ac- | B.33 ix. A takes animals out of control of tive force not created by A upon B; 11. A B and T drives them into danger.34 x. A recompels T to direct a situation not created leases a force that T deflects against B.35 by A against B.

| xi. A deflects B into a danger created by


All these ways of connecting the third

D. Reasons for Imposing Liability.—In party with the defendant and the plaintiff

making the above analysis it was intended are found in the cases, and in analyzing the

merely to show how liability arises. In cases we find this legal principle which

conclusion, I wish to indicate why liability grows out of them.

| is imposed. 5. If an act induces the activity of a per- It is always a dangerous proceeding, to son so that such activity contributes to the my mind, to make too general a rule if the injury of another person, or if an act cre rule is to be followed in practice as a guide ates, or an omission permits, a situation so | for the determination of liability. The esthat the independent activity of a person sence of generalizing is the ignoring of difcompels a factor in that situation to im ferences and the emphasizing of common pinge upon another person to his hurt, then elements in various situations. Yet the difthat act or omission is the proximate cause | ferences may be as important as the likeof the injury. Examples of this are as nesses. But in the present case it is quite given below : i. A puts T in danger and obvious that we would not be doing violence makes him hurt B.26 ii. A attracts T to to the facts when we say that all of the cases hurt B.27 iii. A incites T to hurt B.28 iv. A given can be subsummed under three heads, creates a dangerous situation which T di- | as follows: rects against B.29 v. A separates T from | 1. The application of a direct force by B.30 vi. A hurts B and T does not prevent

A upon B. the consequences of that hurt in whole or

2. The application of a direct force

upon T by A so that T hurts B. (26) Quigley V. D. & H. Canal Co., 142 Pa. 388; Washington & Georgetown R. R. v. Hickey,

3. The creation of a situation by A, so 166 U. S. 521; Scott v. Shepherd, 2 Wm. Bl. 892; that B, by his own acts or the acts of T, Ricker v. Freeman, 50 N. H. 420.

which acts of T are induced or not defend(27) Guille v. Swan, 19 Johns 381; Lane v. Atlantic Works, 111 Mass. 136. Cf. Glassey v.

ed against by A, comes into contact with

the situation and is hurt. 315, and Mangan v. Atterton, L. R. Ex. 239, contra.

1 In the first case, where there has been (28) Wise v. Dunning, 1902, 1 K. B. 167; | a direct application of force, liability has Keaton v, State, 41 Tex. Cr. R. 621; Rex y. Mc

nearly always been imposed. This is beDaniel, Leach 4th ed. 44; Cf., also, for the converse case where A was not held liable, Schoepflin v. Coffey, 162 N. Y. 12. The great weight of (31) Pullman Palace Car Co. v. Bluhm, 109 II). authority is with this decision.

20: Sauter v. N. Y. C. & H. R. R. Co., 66 N. Y. (29) Regina v Mitchell, 2 Moody 120; John

50; Commonwealth v. Hackett, 2 All. 136: Peoson v. N. W. Tel. Exchange Co., 48 Minn. 453;

ple v. Cook, 39 Mich. 236; Regina v. Davis, 15 Burrows v. March Gas Co., L. R. 5 Ex. 67; Quak

Cox's C. C. 174, dicta. er Oats Co. v. Grice, 195 Fed. 441; Watson v.

(32) Dannehower v. Western Union Tel. Co.. Ky, and Ind. Bridge and R. R. Co., 137 Ky. 619; Chacey v. City of Fargo, 5 N. D. 173; Pastene v.

(33) Keaton v. State, 41 Tex, Cr. R. 21; FotAdams, 49 Cal. 87. Cf., contra, Stone v. Boston

tler v. Moseley, 179 Mass. 295; Southern Rail& Albany R. R. Co., 171 Mass. 536; Seith v. Com

way Co. v. Webb, 116 Mich. 425. monwealth Electric Co., 241 I11. 252.

(34) Wilder v. Stanley, 65 Vt. 145. (30) Regina v. Halliday, 61 Law Times Re

(35) Turner v. Page, 186 Mass. 600. ports 701.

(36) Clark v. Chambers, 3 Q. B. D. 327.

Worcester Consolidated Street Ry. Co.. 185 Mass.

218 Pa. 216.

cause under modern conditions the law whom the defendant has no causal relation. guarantees protection from unlawful ag- Here the plaintiff can recover for his ingression to every person who lives under juries.30 the law. When the state took over the task | According to Dean Pound, the reason of keeping the public peace, and so denied why recovery would be allowed, if I am not to an injured person the right to self-help, misinterpreting the application of this stateif that self-help injured the peace of the ment, is that "in civilized society men must state, it took on the duty of seeing that men i be able to assume that others, when they were propertly protected in their lawful pur act affirmatively, will do so with due care suits. As Dean Pound says: “In civilized

with respect to consequences which may society men must be able to assume that reasonably be anticipated. Professor Beale others will commit no intentional aggres

would say that the reason for imposing liasions upon them.”37 A person who directly | bility on the defendant is that the defendant injures another must make redress for that | “has created a risk,” or has “subjected the injury, unless "he can justify his act under plaintiff to a risk.” That is, he has created some social or public interest, or assert a | a dangeroụs situation and must pay for inprivilege because of a countervailing indi juries resulting from that dangerous sitvidual interest of his own which there is a uation. social or public interest in securing."38 My difficulty with Dean Pound's reason

The same reasons apply to the cases | ing is that it restates the doctrine of "foreunder the second head, for a man is justly seeableness” which I have examined at held responsible for the agencies he em | length before and discarded. My difficulty ploys, as well as for the things he does di with Prof. Beale's explanation is that I canrectly himself. There is no difference be not see why calling a situation dangerous or tween the cases where a man strikes another

risky should be looked upon as a reason for himself and cases where he compels a third imposing liability on the creator of the risk. person to strike that other.

As a matter of fact, it seems to be restatIn the matter of the cases under the third

ing the doctrine of "foreseeableness," once head the ground for imposing liability is

again. A situation or act is dangerous and not so easily arrived at. Three types of risky when the experience of society has cases can be found:

been such injuries had followed most usu1. Here the defendant simply creates a ally the creation of that situation or the situation and the plaintiff by his own acts doing of that act. This is a reason for comes into contact with it and is hurt. In saying that a thing is dangerous, but it is these cases recovery is allowed.

not a reason for saying that liability should 2. Here the defendant creates a situation rest upon the creation of a danger. For, in and the plaintiff is brought into contact with the case of a situation, it is not a danger the situation by a third party with whom unless the person injured through his own the defendant has no causal relation. In acts comes into contact with the situation, these cases the plaintiff cannot recover from or places himself in a position where facthe defendant for his injuries.

tors in the situation can be directed against 3. Here the defendant creates a situation

him. For example, the City of X puts down and a factor in that situation is directed

a board sidewalk and keeps it in bad repair, against the plaintiff by a third person with

(39) The case where the defendant creates

a situation and then causes a third party to (37) Outline of a Course on the History and bring the situation into contact with the plainSystem of the Common Law, p. 40, Jural Pos tiff, or to bring the plaintiff into contact with tulate 1.

the situation, can be placed under the second (38) Ibid, p. 47, "Corollary of Jural Postulate head, supra, and need not be discussed under

this head.

so that one of the planks are loose. Y is | LANDLORD AND TENANT-EVICTION. walking down the street on this sidewalk.

CONROY v. TOOMAY. Z, riding a bicycle, in the street, swerves into the sidewalk and throws the loose plank Supreme Judicial Court of Massachusetts. against Y. Y can recover against the city.

Suffolk. Jan. 7, 1920. The city has created a dangerous situation,

125 N. E. 568. but it concurred with the activities of X and Y to produce the injuries to Y. Why does

Where the lessor of an apartment fails to not the act of Y bar him from a recovery?

heat and to supply hot water, there is a conThe answer is, that Y has done nothing structive eviction of the tenant, who may move

and escape further liability for rent. legally wrong, while the city has. This, to my mind, gives the clue to the reason why

CROSBY, J. This is an action to recover liability is imposed upon the creator of a

for rent of a suite in an apartment house acdangerous situation.

cording to the terms of a written lease; it Using the line of thought suggested by was agreed that the defendant had paid all Dean Pound, we can say that in civilized

rent due up to and including the month of

October, 1918, but that the sum alleged to be society man can assume that there are cer

due on November 1, 1918, had not been paid. tain spheres within which they can act with

The lease was "for the term of two (2) years out being in danger. They can also assume from the first day of September, in the year that these spheres will not be contracted or

nineteen hundred and sixteen, until the last

day of August, in the year nineteen hundred circumscribed without warning or in un

and eighteen (if then terminated as hereinlawful ways. When the city builds defec

after provided), and thereafter from year to tive sidewalks it has circumscribed the year, until one of the parties hereto shall, spheres where men naturally can expect to on or before the first day of July in any year, move with safety. The city should, there

give to the other party written notice of his

intention to terminate this lease on the last fore, be held for injuries resulting from

day of the following August, in which case such circumscription, without warning, of

the term hereby created shall terminate in spheres of activity. That is, the reason why accordance with such notice.” the creator of a risk is to be held liable for

At the trial the defendant offered evidence the consequences followings the creation of to show that the apartment house was heated that risk is unexpected to the person injured by a steam-heating apparatus in the cellar, and not because the creator of the risk |

under the exclusive control of the lessor; "that could have foreseen that something or

during the fall and winter and spring of 1918"

the landlord failed to provide the defendant someone would be hurt by the creation of

with an adequate supply of heat and hot water the risk. And if it is argued that if society to enable him and his family to live in safety leads men to expect certain things and then in the apartment, and for this reason it was expectations are not fulfilled, though law

unfit for occupation; that during the period re

ferred to the defendant complained to the plainfully acted upon, then society and not the

tiff about the failure to supply heat and the creator of the risk ought to bear the brunt plaintiff "continuously promised to do so"; that of making redress, the answer is that soci prior to the first day of July, 1918, and subseety sees fit to make redress by giving the

quent to the execution and delivery of the lease,

the plaintiff orally agreed with the defendant injured party a cause of action against the

that if the latter would not give a written nocreator of the risk, and says that the rea

tice required to terminate the lease on the last son for giving the cause of action is that day of August, 1918, and would continue to the injuring party has circumscribed and occupy the apartment, she would furnish the thus interfered with the sphere of lawful

apartment with the proper and necessary supactivity of the one who was injured.

ply of heat and hot water, and in the event of

her failure to do so would not hold him liable ALBERT LEVITT.

under the terms of the lease; that the defenCambridge, Mass.

dant, relying on the agreement, did not give

notice to terminate the lease but continued to held that a tenant not getting proper furnace heat occupy the premises until a few days before and electric light as agreed to be furnished, for October 30, 1918; that on October 21, 1918, he

a millinery store, justified her vacation of the

premises and her release from further liability notified the plaintiff in writing that it was im

for rent, notwithstanding her consent to instalpossible for him and his family to live there lation of a stove as an experiment, where the and he would move out on or about November consent was withdrawn upon the stove proving 1, 1918; and that he did so move before that

ineffectve. Such failure was called a construc

tive eviction. date. The defendant further offered to show

In Le Pichard v. Geo. N. Thurber Co., 84 N. that during the months of September and Octo

J. L. 103, 86 Atl. 953, 4 N. C. C. A. 606. there ber of that year the apartment was unfit and

was an action for damages by a tenant who had unsafe for occupancy because of the failure of the abandoned the premises. Plaintiff had judgment plaintiff to furnish sufficient heat and hot water.

which was affirmed, the court declaring that “The

demand counts on negligence, in that the landThe trial judge excluded the evidence and di

lord, being in control of steam heat, was under rected the jury to return a verdict for the

a duty to use reasonable care to see that it did plaintiff for the full amount of her demand. no injury." This was sustained. We are of the opinion that the evidence was

In O'Hanlon v. Grubb, 38 App. D. C. 251. 37 L. plainly admissible; if the oral agreement was

R. A. (N. S.) 1213, tenant sued for failure to

furnish heat to a steam-heated apartment. When proved and a breach thereof was shown it was

he moved there he found a leakage in one of the a valid defense to the action. The agreement radiators, which kept on increasing. He notified was founded upon a good consideration, and the janitor repeatedly and also the landlord's was not open to the objection that it was with

agent. Escape from the radiator damaged plain

tiff's goods. This was held to carry liability to in the statute of frauds. It has long been set

the landlord. The court thought this case contled “that ordinarily a written contract, be cerned "a class of tenancy of comparatively refore breach, may be varied by a subsequent cent origin, and one which in some respects at oral agreement, made on a sufficient consider least is to be distinguished from other classes." ation, as to the terms of it which are to be

Then the court goes on to speak of apartments

being all heated from a plant operated and conobserved in the future. Such a subsequent oral

trolled by the landlord, and of leases being enagreement may enlarge the time of perform tered into in the light of this common practice ance, or may vary any other terms of the con and understanding. Plaintiff had judgment which tract, or may waive and discharge it alto

was affirmed. gether," Hastings v. Lovejoy, 140 Mass. 261, 264, In Edmison v. Lowry, 3 S. D. 77, 52 N. W. 583, 2 N. E. 776, 777, 54 Am. Rep. 462; and this rule

17 L. R. A. 275, 44 Am. St. Rep. 774, the view of

the court was that the matter complained about applies although the original contract, as in the

need not be of a permanent character, but it must case at Bar, falls within the statute of frauds.

deprive the tenant of the free enjoyment of the Cummings v. Arnold, 3 Metc. 486, 37 Am. Dec. premises or some material part thereof. In this 155; Stearns v. Hall, 9 Cush. 31; Hastings v. 1

case the landlord deposited lumber in the street

| in front of tenant's store and his sales were Lovejoy, supra. If the jury found that the oral

greatly diminished. He was requested to remove agreement was proved and that the plaintiff the obstruction and failing to do so, the landlord's thereafter had failed to comply with its terms, right to demand rent was suspended for the time the defendant would not be liable for the pay

being. For this ruling quite a number of cases ment of rent, not only because it could be found

are cited from New York, Massachusetts and Illi

nois. Here it is seen the tenant was not obliged that he had been constructively evicted, Nesson

to remove from the premises as a condition of v. Adams, 212 Mass. 429, 99 N. E. 93; Boston refusing to pay rent for occupancy. It is said Veterinary Hospital v. Kiley, 219 Mass. 533, the act to constitute eviction must be of a grave 107 N. E. 426, but because the plaintiff expressly

and permanent character. This, however, is not

recognized as above stated in Buchanan v. had exonerated him from such payment. There i

Orange supra. is nothing in Holdsworth v. Tucker, 143 Mass.

But it has been held that if a tenant is in 369, 9 N. E. 764, relied on by the plaintiff, at

arrears for rent, and lease provides for forvariance with the conclusion here reached. feiture in case of non-payment and for reentry by Exceptions sustained.

use of such force as is necessary, then landlord may shut off heat and will not be liable for any

injury to tenant therefrom. Howev. Frith, 43 NOTE--Eviction in Failura by Landlord to Fur Colo. 75, 95 Pac. 603, 17 L. R. A. (N. S.) 672, nish Heat.-In Buchanan v. Orange, 118 Va. 511, 127 Am. St. Rep. 79, 15 Ann. Cas. 79. To support 88 S. E. 52, L. R. A. 1916E, 739, the view is ex this view authorities were cited to the proposipressed, arguendo, that eviction at common law, tion that "Under covenants on leases reserving to meaning an actual dispossession of the tenant by the landlord the right of re-entry for covenants the landlord ought not to apply "to the modern broken, it has been held that the landlord may custom of leasing a floor in a building for busi render the tenement uninhabitable by removing ness or living purposes, under a contract with doors, windows and other portions of the strucvarying stipulations as to the duties of the land- ture, even to the extent of demolishing the tenelord toward the tenant." Therefore, this case I ment; and that such acts, where no more force

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