Page:Harvard Law Review Volume 10.djvu/206

180 l80 HARVARD LAW REVIEW. The simplest way would seem to be to employ a process of elimination in the charge to the jury. Let the judge start with a clear case of liabiHty, and work toward a clear case in which there is no Hability, in such a manner as to bear on the facts of the question before the jury. In this way could be obtained the elasticity considered in the article referred to as essential in any rule of liability. To start with a clear case, then, suppose the persons brought in by the surgeons were prompted to come by idle curiosity merely. Can the line be drawn between that case and one where the on-lookers are medical students? Desirable as it is to do so, what is the difference between the two acts that warrants the distinc- tion? Under the influence of the modern scientific spirit a fundamental difference is felt, which makes one act seem wanton, while the other can only be regarded with approval. In the latter case there can be no mju- ria if the law is to protect right-minded persons in their right to privacy without encouraging squeamish plaintiffs. This is not to assert a right to study a person's case, however interesting, against his will, express or implied. It is merely to say that one who is rightfully taken into the operating room of a hospital is not to be presumed to object to that which is regularly done there. As to the second ground on which the action is based, it is a truism to say that unless the patient's identity is in some way connected with the published description there is no infringement of the right to privacy. It is the same question that arises in the law of libel. Right of a Beneficiary to sue on a Contract. — Lawrence v. Fox Again. — The anomalous doctrine that "whenever one makes a promise to another for the benefit of a third person, the latter may maintain an action at law upon such a promise," has received another severe blow in New York ; Lawrence v. Fox, 20 N. Y. 268, the weightiest authority to be found in its favor, has been again distinguished, and sharply re- stricted. In BuchaJian v. Tihkn, 39 N. Y. Supp. 228, the defendant had agreed with the plaintiff's husband, in consideration of valuable services rendered to defendant in a lawsuit, that if the defendant should win the suit he would pay to the wife fifty thousand " dollars. The defend- ant won his suit, and the wife brought this action on the contract in her own name. The court refused to allow her to recover, and distin- guished Lawrence v. Fox, quoting from the opinion in Vroovia?i v. Turner, 69 N. Y. 284, to this effect: " I he courts are not inclined to extend the case of Lawrence v. Fox to cases not clearly within the principle of that decision. Judges have differed as to the principle on which Lawrence v. Fox and kindred cases rest, but in every case in which an action has been sustained there has been a debt or duty owing by the promisee to the party claiming to sue upon the promise." The opinion subsequently proceeds : " This and similar cases that might be cited, in which Lawrence v. Fox has been distinguished, will show that that case has been sharply criticised and its scope materially limited, and that the tendency of the decisions is to adhere to the rule of the common law that one cannot acquire rights under a contract to which he is not a party." The court then holds that, while the husband was bound to support his wife, he was not bound to make her a present of fifty thousand dollars, and therefore the case need not follow Lawrence v. Fox. The idea that some other person than the promisee can maintain an