(concurring).
The opinion which evoked this petition for rehearing turned upon its approval of the trial court’s concept that, after distributing a type of airplane propeller in commerce- a manufacturer has a continuing duty to develop and adapt improvements calculated to make that article that is already in use safer. This doctrine is new and far reaching and, in my view, may well be unsound. If this new concept were essential to the disposition of this appeal I would vote for rehearing before the- full court.
However, Judge Kalodner’s supplementary opinion now points out that the detailed undisputed facts which are disclosed in the opinion of the trial judge, who decided this case without a jury, required a conclusion that the manufacturer was negligent, at least in failing to warn and inform its vendee that there had occurred some sixty or more episodes of prbpeller malfunction, all of the type which subsequently caused this accident, most of them even before this propeller was sold. No reasonable man could possibly square such conduct with the standard of due care in the circumstances.
There would be no point, therefore, in sending this case back to the district court to find again, as rationally it must, though on a different theory, that the facts already established constitute actionable negligence. For this reason, and without approving the new concept of a manufacturer’s continuing duty to improve a device after he has sold it, I vote to deny rehearing before the court en banc.