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HOPKINS v. BLANCO (03/27/73)

decided: March 27, 1973.

HOPKINS, APPELLANT,
v.
BLANCO



Appeal from orders of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971, No. 2083, in case of Lorraine Hopkins v. Gumersindo Blanco, M.D., and Alberto Adam, M.D., and Hahnemann Medical College and Hospital.

COUNSEL

James E. Beasley, with him Keith S. Erbstein, and Beasley, Hewson, Casey, Kraft & Colleran, for appellant.

Francis E. Shields, with him Victor L. Drexel, and Pepper, Hamilton & Scheetz, for Gumersindo Blanco, M.D. and Alberto Adam, M.D., appellees.

Robert R. Reeder, with him John J. Dautrich, and White and Williams, for Hahnemann Medical College and Hospital, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 224 Pa. Super. Page 117]

Appellant contends that Article I, section 27 of the Pennsylvania Constitution compels the courts to extend the right to consortium to women who have long been denied that right under the common law.*fn1

Consortium has normally been defined in terms of a husband's right to be secure in his marital relationship: "'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 loss of service. . . .'" Service "'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 conjugal regard and affection and thereby mitigate the damages.'" Kelly v. Mayberry Township, 154 Pa. 440, 447, 26 A.2d 595 (1893); Neuberg v. Bobowicz, 401 Pa. 146, 162 A.2d

[ 224 Pa. Super. Page 118662]

(1960); Brown v. Philadelphia Transportation Company, 437 Pa. 348, 263 A.2d 423 (1970).

Pennsylvania has refused to grant women the right to consortium. Brown v. Glenside Lumber and Coal Company, 429 Pa. 601, 240 A.2d 822 (1968); Neuberg v. Bobowicz, supra. The Commonwealth's refusal to extend the right to consortium to women is founded upon the common law rationale that a woman-spouse was her husband's property. "She owed him duties much the same as did a servant his master. If he by injury to her suffered a loss of some feudal service owing to him by her, he and he alone -- for she was too inferior a subject to have any such right, much less the privilege to assert it -- was allowed to sue to recover, just as he would sue for injuries done to his cattle. He for all technical purposes, owned her at common law. . . ." Neuberg v. Bobowicz, supra at 401 Pa. 150 (emphasis added). Given the woman's inferiority to man at common law, a wife had no right to her husband's assistance, comfort, society, and services. She could not recover if her marital relationship was impaired by a third party's negligent infliction of injuries upon her husband. Justice Benjamin Cardozo dispelled this concept of sexual inequality as the foundation upon which courts must decide the issues before them: "'Social, political, and legal reforms [have] changed the relations between the sexes, and put woman and man upon a plane of equality. Decisions founded upon the assumption of bygone inequality are unrelated to present-day realities, and ought not be permitted to prescribe a rule of life.'" Montgomery v. Stephen, 359 Mich. 33, 41, 101 N.W. 2d 227, 230-231 (1960).

The Commonwealth adopted a Constitutional amendment which clashes with the common law enunciation of the right to ...


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