(dissenting)
I dissent, suggesting that the main opinion has given us a new and novel principle, that of anticipatory stare decisis. Denuded, it says that: 1) Since Justices Black and Douglas, in an uncontrolling dissent,1 advocated the admiralty rule requiring an employer to sustain the burden of proving the validity of a release;2 and 2) since Justices Frankfurter, Reed, Jackson and Burton, in another dissent in an entirely different case,3 chose to espouse the “preponderance” rule as against the then existing “clear and convincing” rule,4 it follows that those six gentlemen would adopt the “preponderance” rule, given the chance. Hence, reasons the majority opinion, we may as well announce it for them.
Such manner of syllogistic reasoning, so far as I am aware, is foreign to our system of jurisprudence, save as it may be found in Purvis v. Pennsylvania Ry. Co.,5 a U. S. Circuit Court decision relied on by the main opinion. That case, in my mind, is no authority for the rule that presumptuously is enunciated there for and on behalf of the U. S. Supreme Court. The *188rule was'not an issue in the case. Anything said about it was strictly obiter, as is reflected in the opening statement of its discourse on the subject, when it was said that “Though of but collateral interest in this particular case it is important to comment at this time on the quality of proof necessary to set aside a release in this type of action.”
The Purvis case relied entirely on the language of Mr. Justice Frankfurter in Dice v. Akron C. & Y. R. R. Co., cited below, in arriving at its strange conclusion that you can add up two different dissents involving two entirely different rules, and conclude that one of those rules is the law because the Supreme Court would say so, given the opportunity. It is equally strange that the only authority6 cited by Mr. Justice Frankfurter in the Dice case, which he claimed supported the rule he enunciated, did not even discuss the rule or any other rule relating to quality or quantum of proof.
The reasoning .of the majority opinion wholly fails to take into account the fact that time often stills the voices of Justices of the Supreme Court, as already it has done with three of the foursome led by Mr. Justice Frankfurter in the Dice case, leaving him alone to front for the “preponderance” rule so far as any divination we might indulge is concerned. It fails-to'take account of the malleability of thinking reflected in the history of the high-court, and it fails to take into account the fact, that by the same kind of reasoning indulged by the main opinion and the Purvis case, we could predict that at present only Justice Frankfurter would hold out for the “preponderance” rule, while Justices Black and Douglas would dissent from his opinion, in favor of the radically different admiralty rule where the burden of proof actually is shifted from the plaintiff to the defendant. Where the other six gentlemen on the court would go is equally as much a matter of divination as that found in the main opinion and the Purvis case.
. Callen v. Pennsylvania R. R. Co., 1948, 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242.
. Thus rejecting the rule that an employee■ must sustain the burden of proving the' invalidity of a release by “clear and convincing” evidence, and thus rejecting the rule that an employee must sustain the burden of proving the invalidity of a release by a “preponderance” of the evidence.
. Dice v. Akron C. & Y. R. R. Co., 1952, 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398.
. Callen v. Pennsylvania R. R. Co., supra; Kirckgestner v. Denver, R. G. W. R. Co., 1950, 118 Utah 20, 218 P.2d 685.
. 3 Cir., 1952, 198 F.2d 631, 633.
. Union Pacific R. R. Co. v. Harris, 1895, 158 U.S. 326, 15 S.Ct. 843, 39 L.Ed. 1003.