Castelli v. Pittsburgh Railways Co. , 413 Pa. 17 ( 1963 )

Concurring Opinion by

Mr. Justice Benjamin R. Jones:

• I concur in the result reached by the majority of my brethren but dissent from that portion of the majority opinion which,, by implication at least, would recognize the right of a . husband to recover damages for the loss of his wife’s consortium.

In Neuberg v. Bobowicz, 401 Pa. 146, 162 A. 2d 662, this Court held that a married woman does not have a cause of action in Pennsylvania for damages for the loss of her husband’s consortium. In Neuberg, the majority opinion classified the right of a husband to sue for damages for the loss of his wife’s consortium as “a vague, indefinable and embarrassing leftover from another day and age” (p. 154) and clearly demonstrated why such right should not be recognized. Concurring, the late Mr. Justice Bok expressed “the hope that the unreality of .the husband’s right may become apparent in the light of the times and result in its abolition” (p. 159).

In Bedillion v. Frazee, 408 Pa. 281, 288, 183 A. 2d 341, this Court, without any mention of Neuberg, continued to recognize the existence of the husband’s right. However, three of the six members of the Court who sat in Bedillion concurred only in the result.

In my opinion, the question whether this Court now grants recognition to the right of a husband to sue for damages for loss of consortium should be .clarified for the sake of the bench and bar. However, such question should be determined only in á case where that question has been properly raised, briefed and argued. In the case at bar, such question has not been raised, briefed nor argued and to the extent that the majority opinion now continues to grant recognition to the right of the husband, I dissent.

Mr. Justice Cohen and Mr. Justice Eagén join in this opinion.