Mosser v. Darrow/Dissent Black
Mr. Justice BLACK, dissenting.

The Special Master, District Court, Court of Appeals and this Court all seem to agree that the respondent trustee, Darrow, has been guilty of no act of bad faith. As a result of his administration, large profits accrued to the estate. Nevertheless, the Court now holds that respondent must be surcharged $43,000 solely because two of the trust's employees profited to that extent from trading in trust securities with his knowledge. This rule of trustee liability did not exist before today, as is shown by the fact that no statute or case is cited in support of the Court's decision.

Despite its novelty, there is much to be said in favor of such a rule for cases arising in the future. It seems to me, however, that there is no reason why the rule should be retroactively applied to this respondent when to do so is grossly unfair. Admittedly, the most that can be said against respondent is that he made an honest mistake which before today would not have subjected him to the heavy financial penalty. Under these circumstances, if the new rule is to be announced by the Court, I think it should be given prospective application only. See Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 and cases cited, 85 A.L.R. 262.

I would affirm the judgment of the Court of Appeals. 

Notes