Maine court also would not approve school children's playing and scuffling on the street, although Judge Goodenow (correctly named), dissented, saying: "We must expect of children the habits of children, and that they will be mirthful, joyous and sportive, while regularly on the way, as travelers, to and from school." And the same court would not suffer boyish baseball on the street, McCarthy v. Portland, 67 Me. 167; 24 Am. Rep. 23. But these New England cases were under statutes which only required the keeping of the streets safe for " travelers." In Donoho v. Vulcan Iron Works, 75 Mo. 401, the court considered that a boy on an errand for his mother might lawfully stop to watch some more fortunate boys playing in a sand bank. A grown-up man, fooling with a dog on the sidewalk, is different, and perhaps it is well enough to discourage such pranks.
Deadly Weapon — P1n. — A pin thrust down a baby's throat, thereby killing it, is a "deadly weapon." So say the North Carolina Court, in State v. Norwood, 20 Southeast, Rep. 712. The Court said : — "The question whether an instrument with which a personal injury has been inflicted is a deadly weapon de pends, not infrequently, more upon the manner of its use than upon the intrinsic character of the instrument itself (State v. Huntley, 91 N.C., 620). We may expect death to ensue from pushing such a pin down the throat of an infant, just as we may look for death or serious bodily harm as a consequence of firing a pistol into a crowd of human beings, or at a particular person."
Exhumat1on of Body for Autopsy. — In Wehle v. U. S. M. Acc. Assn., the Superior Court of New York, held (12 N.Y. Law Jour.) that exhumation would not be allowed, although the policy on which the action was brought provided that "any medical adviser of the association shall be permitted to examine the person or body of the insured in respect to any alleged injury or cause of death, when and as often as he requires. The Court cited Granger's Ins. Co. v. Brown, 57 Miss. 308; 34 Am. Rep. 446, and observed : — "When a body has once been buried, the law, having a proper respect for the dead, a just regard for the sensibili ties of the living and for the due preservation of the public health, has jealously guarded the grave against ruthless in trusion. Exhumation has been tolerated only upon con sent of the next of kin, for substantial reasons satisfactory to the family and which appealed to the finest instincts of their nature, or upon permission of the proper municipal authority, in extreme cases, to answer the imperative re quirements of justice or some urgent public necessity which
overruled the apparent impropriety, and made the act legal. Dissection is justified only where other and less ob jectionable means of ascertaining the cause of death fails. Here the death was evidently by drowning; the circum stances clearly demonstrated the fact, and the coroner's jury so found. An autopsy after burial would have looked like a handing over of the body, as under suspicion, for mercenary ends, for experimental, not scientific or legal purposes; would have been considered indecent, shocking to the sensibilities of the relatives, and an act " at the bare idea of which nature revolted " (King v. Lynn, 2 T. R., 733). It was unnecessary, and nothing that appears in the case would justify it. It would therefore have been sacrilege to have disturbed the dead man's grave or muti lated his remains, which, by every notion of propriety, should be allowed to rest in peace."
Damages — Prospect1ve Ch1ld. — It has been lately held that no recovery can be had for the loss of services and society of a prospective child, through injuries to the mother resulting in miscarriage. Butler v. Manhattan Ry. Co. 14 N.Y. 417; Tunnicliffe v. Bay C. C. Ry. Co., Minnesota Supreme Court, 61 Northw. Rep. 11. The New York Court said : — "Where the inquiry relates to the value of the life of a child, cut off in infancy, there are some material facts, capable of proof, which may be placed before the jury and which afford some aid in estimating the pecuniary loss suf fered by parents or other relatives. The age and sex of the infant may be proved; its mental and physical condi tion; its bodily strength, and, generally, whether there was the apparent promise of a continued or useful life, or the contrary. The speculation which, in the present case, the jury were permitted to make had not even these safe guards, slight as they are. They were allowed to estimate the pecuniary interest which a husband had in the chance that an embryo, not yet quickened into life, would become a living child. The sex could not be known, and if born alive the infant might have been destitute of some faculty or so physically infirm as to have made it a helpless charge. There are no elements whatever upon which a jury could base any conclusion that a pecuniary injury had been suf fered by the plaintiff from the loss of the unborn child, and this inquiry should have been excluded from the con sideration of the jury as too remote and speculative to form an element in the recovery." The Minnesota Court cited Bovee v. Town of Danville, 53 Vermont, 183, where the Court would not even allow for the mother's grief, observing : — "If the plaintiff lamented the loss of her offspring, such grief involves too much an element of sentiment to be left to the conjecture and caprice of a jury. If like Rachel she wept for her children, and would not be comforted, a question of continuing damage is presented, too delicate to lie weighed by any scales which the law has yet in vented."
