.Dissenting Opinion by
Mr. Justice Roberts:As indicated by the majority’s citation to Neuberg, the sole issue here involved is a wife’s right to maintain an action for loss of consortium where as a result of a third party’s negligence her husband has suffered a brain injury causing a complete personality change. Although the question of the constitutionality of the Pennsylvania rule permitting the husband to maintain such an action while denying a similar right to his wife (which is in effect reaffirmed by the majority’s decision) is not presented by this appeal,1 this problem must form part of the matrix of our decision.
Of the courts that have considered the constitutional issue, the majority have concluded that to permit the husband’s recovery yet to deny the same right to a wife works a denial of equal protection. See Karczewski v. Baltimore and Ohio RR Co., 274 F. Supp. 169 (N.D. Ill. 1967); Owen v. Illinois Baking Corp., 260 F. Supp. 820 (W.D. Mich. 1966); Clem v. Brown, 3 Ohio Misc. 167, 207 N.E. 2d 398 (1965); contra, Krohn v. Richardson-Merrell, Inc., 219 Tenn. 37, 406 S.W. 2d 166 (1966), cert. denied, 386 U.S. 970, 87 S. Ct. 1160 (1967). Other courts have allowed the wife’s *605action for fear that to do otherwise would create constitutional problems. See, e.g., Deems v. Western Maryland Ry., 247 Md. 95, 231 A. 2d 514 (1967). I am similarly convinced that whatever may be the merits or demerits of a consortium action, they apply equally whether the plaintiff is a husband or wife; to determine eligibility for relief on the basis of the sex of the party seeking recovery creates a totally irrational classification and thus denies equal protection. Simply; I believe that the time has come for this Court to “fish or cut bait”—either to permit both husband and wife to bring consortium actions or to deny the right to both.
To date, some sixteen states and the District of Columbia2 allow a wife to bring a consortium action. And the clear trend of the courts that have recently considered this problem is to permit the wife’s action. See Prosser, Torts 916-19 (3d ed. 1964). While I agree with Mr. Justice Eagen’s majority opinion in Neuberg that the historical justification for the husband’s action has long since disappeared, I nonetheless believe that the action for consortium should be retained if in fact it can find justification in the realities of today’s policy. I believe, as do the vast majority of the commentators in this area,3 that there is justification to retain the husband’s action and extend that action to his wife. Perhaps Professor Henry H. Foster, Jr. has best capsulized my views on this issue:4 “In essence, the problem, ... is not one of awarding damages to punish sin, but instead is purely one for the law of pro*606ceclure and damages. It cannot be successfully argued that loss of consortium by either spouse is a negligible loss unworthy of compensation. Only a cynic or a bachelor (which may be a tautology) could so argue. The legal problem is one of multiplicity of actions and the translation of an intangible nonmonetary loss into pecuniary damages. The practical problem, of course, is insurance company opposition to such actions. Professor Jaffee and the Pennsylvania Supreme Court to the contrary notwithstanding, neither the multiplicity nor the damage problem presents serious obstacles that make such suits administratively difficult or unfeasible. Similar objections have been rejected elsewhere, and the consequences have not been catastrophic. Loss of consortium due to the negligence or intentional misconduct of a third person, typically resulting from a traffic accident, is the one tort under discussion where the loss is most apt to be real and genuine, where the suit is not prompted by avarice or revenge, and no other alternative or forum is available. Unless the action of the spouse directly injured is expanded to include the loss of consortium of the other, the one indirectly injured should have a cause of action, although perhaps it may be fair to require consolidation of the actions for trial . . . .”
I dissent.
Mr. Justice Musmanno joins in this dissenting opinion.Counsel for appellant frankly stated at oral argument that the constitutional question was not pressed for fear that it would prompt this Court to abolish the consortium action for either spouse. Such a position has already been advocated by Mr. Justice Jones’ concurring opinion in Castelli v. Pittsburgh Railways Co., 413 Pa. 17, 22-23, 195 A. 2d 794, 797 (1963), an opinion in which Mr. Justice Cohen and Mr. Justice Eagen joined.
To the list of fifteen states compiled in Recent Developments, 13 Vill. L. Rev. 418, 419 n.13 (1968), the decision in Delta Chevrolet Co. v. Waid, 211 Miss. 256, 51 So. 2d 443 (1951) should be added.
See Recent Developments, 13 Vill. L. Rev., supra at 419 n.10.
Foster, Relational Interests of the Family, 1962 Ill. R. F. 493, 520.