3. When an act or an omission compels or allows the control of an animal to be taken from the person who has such control, and that animal is injured, through its own acts or injures another animal or a person, that act or omission is a proximate cause of the injury. Examples of this are: i. A removes control of the animal from B and the animal is hurt.15 ii. A removes the control of the animal from B and the animal injures another.16

4. When an act induces the activity of a person and that activity contributes to the injury of the person or when an act creates a dangerous situation and a person is hurt by coming into contact with that situation through his own lawful activity, or when an omission fails to keep a person from coming into contact with a situation or force, and that situation or force contributes, in conjunction with the lawful activity of the person, to the injuring of that person, such an act or omission is the proximate cause of the injury. Examples of this are: i. A creates dangerous alternatives and compels or induces B to choose between

(14) Cheever v. Danielly, 80 Ga. 114. (15) Sneeby v. Lancashire & Yorkshire Railway Co., L. R. 9 Q. B. 263; West v. Ward, 77 Ia. 322; Gilman v. Noyes, 57 N. H. 627, contra. (But it is based on the express point that the jury did not have a chance to say whether the injuring power, namely, wild bears, could have been anticipated or not.) Kelsey v. Rebuzzini, 80 Atl. Rep. 170, contra.

(16) McDonald v. Snelling, 14 All. 290; Belk v. People, 125 Ill. 584; Isham v. Dow, 70 Vt. 588; Towaliger Falls Power Co. v. Sims, 6 Ga. App. 749. (But this case really goes on the ground that the defendant maintained a nuisance.) For the converse, see Eberhardt v. Glasco Mutual Telephone Association, 139 Pac. Rep. 486. (Note -Here the defendant did not take the control of the animal out of the proper party's hands and was not held liable for the injuries caused. There are many such converse cases in the books.)

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them.17 ii. A takes the control of B's property away from him and B is hurt in getting control back.18 iii. A induces a defensive act on the part of B.19 iv. A attracts B into a dangerous situation to the hurt of B. v. A creates a dangerous force which B fails to neutralize.21 vi. A creates a dangerous situation which deflects the activity of B against B.22 vii. A creates a dangerous situation and fails to keep B away from it. viii. A induces B to act.24 ix. A fails to prevent the activity of B.25

Before enunciating the legal principle which will help the jury to a decision in cases where acts of a third party have contributed in conjunction with the acts of the defendant to the injury of the plaintiff, I wish to indicate all the possible ways in which the defendant can utilize the third party to the hurt of the plaintiff. These ways are as follows: 1. A drives B into T; 2. A drives T into B; 3. A creates an active force and compels T to play it upon B; 4. A creates an active force and compels T to drive B into it; 5. A creates a situation and makes T drive B into it; 6. A creates a situation and T drives it against B; 7. A creates a situation and compels T to drive it

(17) Regina v. Pitts, 1 C. & M. 284; Jones v. Boyce, Stark 493; Tuttle v. Atlantic City R. R. Co., 66 N. J. L. 327; Illinois Central R. R. Co. v. Siler, 229 Ill. 390; Hendrickson V. Commonwealth. 85 Ky. 281; Chambers v. Carrol, 199 Pa. 371.

(18) Bennett v. Lockwood, 20 Wendell 223; Page v. Bucksport, 46 Mo. 56; Lowry v. Manhattan Railway Co., 99 N. Y. 158.

(19) Eckhardt v. Long Island R. R., 43 N. Y. 502; Lowry v. Manhattan Railway Co., 99 N. Y. 158.

(20) Harold v. Watney, 1898, 2 Q. B. 320. (21) Regina v. Holland, 2 Moody v. Robinson, 351; St. Louis and San Francisco R. R. Co. v. League, 71 Kan. 79.

(22) Rollins v. Central Maine Power Co., 88 Atl. Rep. 86; City of Louisville v. Hart, 142 Ky. 171.

(23) Burk v. Creamery Package Mfg. Co., 126 Ia. 730; Bell v.. Rocheford, 78 Neb. 310; Woodson v. Metropolitan Street Railway Co., 24 Mo. 685; Munsey v. Webb, 231 U. S. 150; Ehrgott v. Mayor of City of N. Y., 96 N. Y. 264. (24) Rex v. DeMarny, 1907, 1 K. B. 388; People v. Lewis, 124 Cal. 551. (25) A., T. & Santa Fe R. R. v. Parry, 67 Kan. 515.

against B; 8. A compels T to drive B into an active force not created by A; 9. A compels T to drive B into a situation not created by A; 10. A compels T to play an active force not created by A upon B; 11. A compels T to direct a situation not created by A against B.

All these ways of connecting the third party with the defendant and the plaintiff

are found in the cases, and in analyzing the cases we find this legal principle which grows out of them.

5. If an act induces the activity of a person so that such activity contributes to the injury of another person, or if an act creates, or an omission permits, a situation so that the independent activity of a person compels a factor in that situation to impinge upon another person to his hurt, then that act or omission is the proximate cause of the injury. Examples of this are as given below: i. A puts T in danger and makes him hurt B.26 ii. A attracts T to hurt B. iii. A incites T to hurt B.28 iv. A creates a dangerous situation which T directs against B.29 v. A separates T from B.30 vi. A hurts B and T does not prevent the consequences of that hurt in whole or

(26) Quigley v. D. & H. Canal Co., 142 Pa. 388; Washington & Georgetown R. R. v. Hickey, 166 U. S. 521; Scott v. Shepherd, 2 Wm. Bl. 892; Ricker v. Freeman, 50 N. H. 420.

(27) Guille v. Swan, 19 Johns 381; Lane v. Atlantic Works, 111 Mass. 136. Cf. Glassey v. Worcester Consolidated Street Ry. Co., 185 Mass. 315, and Mangan v. Atterton, L. R. Ex. 239,

contra.

(28) Wise v. Dunning, 1902, 1 K. B. 167; Keaton v. State, 41 Tex. Cr. R. 621; Rex v. McDaniel, 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 authority is with this decision.

(29) Regina v. Mitchell, 2 Moody 120; Johnson v. N. W. Tel. Exchange Co., 48 Minn. 453; Burrows v. March Gas Co., L. R. 5 Ex. 67; Quaker Oats Co. v. Grice, 195 Fed. 441; Watson v. Ky. and Ind. Bridge and R. R. Co., 137 Ky. 619; Chacey v. City of Fargo, 5 N. D. 173; Pastene v. Adams, 49 Cal. 87. Cf., contra, Stone v. Boston & Albany R. R. Co., 171 Mass. 536; Seith v. Commonwealth Electric Co., 241 Ill. 252.

(30) Regina v. Halliday, 61 Law Times Reports 701.

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in part. vii. vii. A induces T to create a dangerous situation which hurts B. viii. A holds B in danger and compels T to hurt B.33 ix. A takes animals out of control of B and T drives them into danger.3 x. A releases a force that T deflects against B.55 xi. A deflects B into a danger created by T.36

making the above analysis it was intended D. Reasons for Imposing Liability.-In merely to show how liability arises. In conclusion, I wish to indicate why liability is imposed.

It is always a dangerous proceeding, to my mind, to make too general a rule if the rule is to be followed in practice as a guide for the determination of liability. The essence of generalizing is the ignoring of differences and the emphasizing of common elements in various situations. Yet the differences may be as important as the likenesses. But in the present case it is quite obvious that we would not be doing violence to the facts when we say that all of the cases given can be subsummed under three heads, as follows:

1. The application of a direct force by A upon B.

2. The application of a direct force upon T by A so that T hurts B.

3. The creation of a situation by A, so that B, by his own acts or the acts of T, which acts of T are induced or not defended against by A, comes into contact with the situation and is hurt.

In the first case, where there has been a direct application of force, liability has nearly always been imposed. This is be

(31) Pullman Palace Car Co. v. Bluhm, 109 Ill. 20; Sauter v. N. Y. C. & H. R. R. Co., 66 N. Y. 50; Commonwealth v. Hackett, 2 All. 136; People v. Cook, 39 Mich. 236; Regina v. Davis, 15 Cox's C. C. 174, dicta.

(32) Dannehower v. Western Union Tel. Co.. 218 Pa. 216.

(33) Keaton v. State. 41 Tex. Cr. R. 21; Fottler v. Moseley, 179 Mass. 295; Southern Railway Co. v. Webb, 116 Mich. 425.

cause under modern conditions the law guarantees protection from unlawful aggression to every person who lives under the law. When the state took over the task of keeping the public peace, and so denied. to an injured person the right to self-help, if that self-help injured the peace of the state, it took on the duty of seeing that men were propertly protected in their lawful pursuits. As Dean Pound says: "In civilized society men must be able to assume that others will commit no intentional aggressions upon them." A person who directly injures another must make redress for that injury, unless "he can justify his act under some social or public interest, or assert a privilege because of a countervailing individual interest of his own which there is a social or public interest in securing."as

The same reasons apply to the cases under the second head, for a man is justly held responsible for the agencies he employs, as well as for the things he does directly himself. There is no difference between the cases where a man strikes another himself and cases where he compels a third person to strike that other.

In the matter of the cases under the third head the ground for imposing liability is not so easily arrived at. Three types of cases can be found:

1. Here the defendant simply creates a situation and the plaintiff by his own acts comes into contact with it and is hurt. In these cases recovery is allowed.

2. Here the defendant creates a situation and the plaintiff is brought into contact with the situation by a third party with whom the defendant has no causal relation. In these cases the plaintiff cannot recover from the defendant for his injuries.

3. Here the defendant creates a situation and a factor in that situation is directed against the plaintiff by a third person with

According to Dean Pound, the reason why recovery would be allowed, if I am not misinterpreting the application of this statement, is that "in civilized society men must be able to assume that others, when they act affirmatively, will do so with due care with respect to consequences which may reasonably be anticipated. Professor Beale would say that the reason for imposing liability on the defendant is that the defendant "has created a risk," or has "subjected the plaintiff to a risk." That is, he has created a dangerous situation and must pay for injuries resulting from that dangerous situation.

My difficulty with Dean Pound's reasoning is that it restates the doctrine of "foreseeableness" which I have examined at length before and discarded. My difficulty with Prof. Beale's explanation is that I cannot see why calling a situation dangerous or risky should be looked upon as a reason for imposing liability on the creator of the risk. As a matter of fact, it seems to be restating the doctrine of "foreseeableness," once again. A situation or act is dangerous and risky when the experience of society has been such injuries had followed most usually the creation of that situation or the doing of that act. This is a reason for saying that a thing is dangerous, but it is not a reason for saying that liability should rest upon the creation of a danger. For, in the case of a situation, it is not a danger unless the person injured through his own acts comes into contact with the situation, or places himself in a position where factors in the situation can be directed against him. For example, the City of X puts down a board sidewalk and keeps it in bad repair,

(39) The case where the defendant creates a situation and then causes a third party to bring the situation into contact with the plaintiff, or to bring the plaintiff into contact with the situation, can be placed under the second head, supra, and need not be discussed under this head.

so that one of the planks are loose. Y is walking down the street on this sidewalk. Z, riding a bicycle, in the street, swerves into the sidewalk and throws the loose plank against Y. Y can recover against the city. The city has created a dangerous situation, but it concurred with the activities of X and Y to produce the injuries to Y. Why does not the act of Y bar him from a recovery? The answer is, that Y has done nothing legally wrong, while the city has. This, to my mind, gives the clue to the reason why liability is imposed upon the creator of a dangerous situation.

Using the line of thought suggested by Dean Pound, we can say that in civilized. society man can assume that there are certain spheres within which they can act without being in danger. They can also assume that these spheres will not be contracted or circumscribed without warning or in unlawful ways. When the city builds defective sidewalks it has circumscribed the spheres where men naturally can expect to move with safety. The city should, therefore, be held for injuries resulting from such circumscription, without warning, of spheres of activity. That is, the reason why the creator of a risk is to be held liable for the consequences followings the creation of that risk is unexpected to the person injured and not because the creator of the risk could have foreseen that something or someone would be hurt by the creation of the risk. And if it is argued that if society leads men to expect certain things and then expectations are not fulfilled, though lawfully acted upon, then society and not the creator of the risk ought to bear the brunt of making redress, the answer is that society sees fit to make redress by giving the injured party a cause of action against the creator of the risk, and says that the reason for giving the cause of action is that the injuring party has circumscribed and thus interfered with the sphere of lawful activity of the one who was injured. ALBERT LEVITT.

Cambridge, Mass.

LANDLORD AND TENANT-EVICTION.

CONROY v. TOOMAY.

Supreme Judicial Court of Massachusetts. Suffolk. Jan. 7, 1920.

125 N. E. 568.

Where the lessor of an apartment fails to heat and to supply hot water, there is a constructive eviction of the tenant, who may move and escape further liability for rent.

CROSBY, J. This is an action to recover for rent of a suite in an apartment house according to the terms of a written lease; it was agreed that the defendant had paid all rent due up to and including the month of October, 1918, but that the sum alleged to be due on November 1, 1918, had not been paid. The lease was "for the term of two (2) years from the first day of September, in the year nineteen hundred and sixteen, until the last day of August, in the year nineteen hundred and eighteen (if then terminated as hereinafter provided), and thereafter from year to year, until one of the parties hereto shall, on or before the first day of July in any year, give to the other party written notice of his intention to terminate this lease on the last day of the following August, in which case the term hereby created shall terminate in accordance with such notice."

At the trial the defendant offered evidence to show that the apartment house was heated by a steam-heating apparatus in the cellar, under the exclusive control of the lessor; "that during the fall and winter and spring of 1918" the landlord failed to provide the defendant with an adequate supply of heat and hot water to enable him and his family to live in safety in the apartment, and for this reason it was unfit for occupation; that during the period referred to the defendant complained to the plaintiff about the failure to supply heat and the plaintiff "continuously promised to do so"; that prior to the first day of July, 1918, and subsequent to the execution and delivery of the lease, the plaintiff orally agreed with the defendant that if the latter would not give a written notice required to terminate the lease on the last day of August, 1918, and would continue to occupy the apartment, she would furnish the apartment with the proper and necessary supply of heat and hot water, and in the event of her failure to do so would not hold him liable under the terms of the lease; that the defendant, relying on the agreement, did not give

notice to terminate the lease but continued to occupy the premises until a few days before October 30, 1918; that on October 21, 1918, he notified the plaintiff in writing that it was impossible for him and his family to live there and he would move out on or about November 1, 1918; and that he did so move before that date. The defendant further offered to show that during the months of September and October of that year the apartment was unfit and unsafe for occupancy because of the failure of the plaintiff to furnish sufficient heat and hot water. The trial judge excluded the evidence and directed the jury to return a verdict for the plaintiff for the full amount of her demand.

We are of the opinion that the evidence was plainly admissible; if the oral agreement was proved and a breach thereof was shown it was a valid defense to the action. The agreement was founded upon a good consideration, and was not open to the objection that it was within the statute of frauds. It has long been settled "that ordinarily a written contract, before breach, may be varied by a subsequent oral agreement, made on a sufficient consideration, as to the terms of it which are to be observed in the future. Such a subsequent oral agreement may enlarge the time of performance, or may vary any other terms of the contract, or may waive and discharge it altogether," Hastings v. Lovejoy, 140 Mass. 261, 264, 2 N. E. 776, 777, 54 Am. Rep. 462; and this rule applies although the original contract, as in the case at Bar, falls within the statute of frauds. Cummings v. Arnold, 3 Metc. 486, 37 Am. Dec. 155; Stearns v. Hall, 9 Cush. 31; Hastings v. Lovejoy, supra. If the jury found that the oral agreement was proved and that the plaintiff thereafter had failed to comply with its terms, the defendant would not be liable for the payment of rent, not only because it could be found that he had been constructively evicted, Nesson v. Adams, 212 Mass. 429, 99 N. E. 93; Boston Veterinary Hospital v. Kiley, 219 Mass. 533, 107 N. E. 426, but because the plaintiff expressly had exonerated him from such payment. There is nothing in Holdsworth v. Tucker, 143 Mass. 369, 9 N. E. 764, relied on by the plaintiff, at variance with the conclusion here reached.

Exceptions sustained.

NOTE-Eviction in Failure by Landlord to Furnish Heat.-In Buchanan v. Orange, 118 Va. 511, 88 S. E. 52, L. R. A. 1916E, 739, the view is expressed, arguendo, that eviction at common law, meaning an actual dispossession of the tenant by the landlord ought not to apply "to the modern custom of leasing a floor in a building for business or living purposes, under a contract with varying stipulations as to the duties of the landlord toward the tenant." Therefore, this case

held that a tenant not getting proper furnace heat and electric light as agreed to be furnished, for a millinery store, justified her vacation of the premises and her release from further liability for rent, notwithstanding her consent to installation of a stove as an experiment, where the consent was withdrawn upon the stove proving ineffectve. Such failure was called a constructive eviction.

In Le Pichard v. Geo. N. Thurber Co., 84 N. J. L. 103, 86 Atl. 953, 4 N. C. C. A. 605. there was an action for damages by a tenant who had abandoned the premises. Plaintiff had judgment which was affirmed, the court declaring that "The demand counts on negligence, in that the landlord, being in control of steam heat, was under a duty to use reasonable care to see that it did no injury." This was sustained.

In O'Hanlon v. Grubb, 38 App. D. C. 251, 37 L. R. A. (N. S.) 1213, tenant sued for failure to furnish heat to a steam-heated apartment. When he moved there he found a leakage in one of the radiators, which kept on increasing. He notified the janitor repeatedly and also the landlord's agent. Escape from the radiator damaged plaintiff's goods. This was held to carry liability to the landlord. The court thought this case concerned "a class of tenancy of comparatively recent origin, and one which in some respects at least is to be distinguished from other classes." Then the court goes on to speak of apartments being all heated from a plant operated and controlled by the landlord, and of leases being entered into in the light of this common practice and understanding. Plaintiff had judgment which was affirmed.

In Edmison v. Lowry, 3 S. D. 77, 52 N. W. 583, 17 L. R. A. 275, 44 Am. St. Rep. 774, the view of the court was that the matter complained about need not be of a permanent character, but it must deprive the tenant of the free enjoyment of the premises or some material part thereof. In this case the landlord deposited lumber in the street in front of tenant's store and his sales were greatly diminished. He was requested to remove the obstruction and failing to do so, the landlord's right to demand rent was suspended for the time being. For this ruling quite a number of cases are cited from New York, Massachusetts and Illinois. Here it is seen the tenant was not obliged to remove from the premises as a condition of refusing to pay rent for occupancy. It is said the act to constitute eviction must be of a grave and permanent character. This, however, is not I recognized as above stated in Buchanan v. Orange supra.

But it has been held that if a tenant is in arrears for rent, and lease provides for forfeiture in case of non-payment and for reentry by use of such force as is necessary, then landlord may shut off heat and will not be liable for any injury to tenant therefrom. Howe v. Frith, 43 Colo. 75, 95 Pac. 603, 17 L. R. A. (N. S.) 672, 127 Am. St. Rep. 79, 15 Ann. Cas. 79. To support this view authorities were cited to the proposition that "Under covenants on leases reserving to the landlord the right of re-entry for covenants broken, it has been held that the landlord may render the tenement uninhabitable by removing doors, windows and other portions of the structure, even to the extent of demolishing the tenement; and that such acts, where no more force