Brown v. Philadelphia Transportation Co.

*352Concurring Opinion by

Mr. Chief Justice Bell:

The principle that a man is entitled to recover for the loss of consortium—namely, his wife’s services, including preparation of food and meals, aid, assistance, comfort, society and intercourse—caused by another man’s negligence or dereliction of duty is and always has been a basic foundation of our Anglo-Saxon Law.*

In Kelley v. Mayberry Twp., 154 Pa. 440, 26 Atl. 595, the Court reiterated what had been a part of the very sinew of our law for countless years (page 447) : “In the case last cited [Henry & Wife v. Klopfer, 147 Pa. 178, 23 Atl. 337], it is said: 'The husband is entitled to recover the moneys he has expended or become liable to pay for the medical care and attendance upon his wife during her illness, and for the loss of her services while unable to attend to her domestic duties.’ In Cooley on Torts, 226, the general doctrine on the subject is stated thus: 'For an injury to the wife, either intentionally or negligently caused, which deprives her of the ability to perform services, or lessens that ability, the husband may maintain an action for the loss of services, and also for an incidental loss or damage, such as moneys expended in care and medical treatment and the like.’ Speaking of the origin, etc., of. the term 'services,’ the same learned author says the word as now understood in connection with claims by husbands for damages, etc., 'implies whatever of aid, assistance, comfort and society the wife would be expected to render to, or bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be. That services in the ordinary sense were not rendered at all, would be immaterial and irrelevant, except as the fact might, under some circumstances, tend to show a want of con*353jugal regard and affection and thereby mitigate the damages.’ ”* See Platz v. McKean Township, 178 Pa. 601, 36 Atl. 136; Bedillion v. Frazee, 408 Pa. 281, 183 A. 2d 341; Castelli v. Pittsburgh Railways Co., 413 Pa. 17, 195 A. 2d 794.**

As recently as Brown v. Glenside L. & C. Co., 429 Pa. 601, 240 A. 2d 822 (April, 1968), this Court again reaffirmed, in a short Per Curiam Opinion, the existing law of consortium in Pennsylvania. Mr. Justice Jones, in his concurring Opinion, pertinently said (page 602) : “Very properly, in my opinion, the majority of this Court now reaffirms our ruling in Neuberg v. Bobowicz, 401 Pa. 146, 162 A. 2d 602 (1960).”

In Neuberg v. Bobowicz, 401 Pa., supra, which denied a wife the right to recover for loss of consortium, Mr. Justice Eagen, in an interesting review of history, reiterated the right of a husband to recover for “loss of consortium.”

I would allow appellee Brown to keep the $3,000 awarded to him by the jury as consortium damages.

This has always been recognized, since before Biblical times and down through the recent decisions of this Court.

The wife’s basic function is to raise the children and provide the services for her husband and children and for an affectionate home. When she is unable to perform her basic obligations to her husband and her family due to another man’s negligent acts, what more basic right is there for the husband to be compensated for the loss of his beloved partner’s “services”? This has been true for centuries and its truth is still relevant and controlling, even in these troubled times, filled with turmoil, controversy and change.

Until 1950, wives were universally denied the right of consortium and only husbands were permitted to sue for harm to their conjugal interests. But in Hitaffer v: Argonne Company, 87 U.S. App. D.C. 57, 183 F. 2d 811, the Courts around the Country, have been dramatically split on whether to allow consortium to b.oth husband and wife, to the husband only, or to deny it to both husband and wife. See Anno. 23 A.L.R. 2d 1378 and Supplements • thereto.