May 2, 1961
Appeals, Nos. 2 and 3, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, July T., 1956, No. 544, in case of Thelma M. Mantz et al. v. Robert E. Rufft. Judgment affirmed.
George S. Goldstein, for appellants.
David J. Armstrong, with him Dickie, McCamey, Chilcote and Robinson, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
[ 403 Pa. Page 437]
OPINION PER CURIAM.
The points presented by appellants have no merit. One was raised here that was not raised before the court below. It concerned the appeal of the husband plaintiff, the point of it being that he got no compensation for the damage to his car. The wife was driving it for her own purposes and was injured, but the jury found for the defendant, saying in a special finding that both drivers were negligent. Since the point about the rights of the husband was not raised on motion for a new trial below, we will not consider it here: Enfield v. Stout, 400 Pa. 6 (1960), 161 A.2d 22.
The judgment is affirmed on the opinion of Judge NIXON, of the court below.
Mr. Justice MUSMANNO dissents.
ING OPINION BY MR. JUSTICE COHEN:
Most disquieting still is the evident facility with which the majority repudiates, without mentioning, two well-considered unanimous opinions of the full membership of this court in Commonwealth ex rel. Reinhardt v. Randall , 356 Pa. 302, 51 A.2d 751 (1947), and Commonwealth ex rel. Houlahen v. Flynn, 348 Pa. 101, 34 A.2d 59 (1943). (See Justice B. R. JONES' dissent in Bowers v. Pennsylvania Turnpike Commission, 402 Pa. 542, 167 A.2d 354 (1961).) I can only conclude that this is an obvious effort to bolster its own interpretation of Article VI, § 4 of the Commonwealth's Constitution. This interpretation contravenes the clear language of the Constitution which means just what it says, that "Appointed officers may be removed at the pleasure of the [appointing] power." (See my dissent in Bowers v. Pennsylvania Turnpike Commission supra.)
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