Gibson v. Lockheed Aircraft Service/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

The controlling claim on which petitioner sought certiorari was that the decision of the Court of Appeals for the Fifth Circuit disclosed conflict and confusion among the circuits in the application of Rule 51 of the Federal Rules of Civil Procedure. We granted the petition. A critical examination of the 118 decisions on which the petitioner relied in his claim regarding Rule 51 convinces me that there was no such conflict and confusion. Therefore, for the reasons set forth by Mr. Chief Justice Taft on behalf of the Court in Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712, the writ should be dismissed as improvidently granted even though full argument has been had. But my brethren find that certain rulings of the Court of Appeals involving ordinary questions in the law of negligence, which by themselves never would have warranted the granting of a writ, are so obviously and injuriously erroneous, 'as to call for an exercise of this court's power of supervision.' This is of course one of the considerations within our Rule governing review on certiorari. Rule 19(1)(b), 28 U.S.C.A. I accept their reading of the record and therefore join in the judgment of the Court.