ON REHEARING
DANIEL, Justice,dissenting.
I would grant the motion for rehearing and reverse and render, because the lower courts were correct in their holdings that Bock Laundry Machine Company was entitled to a directed verdict as a matter of law.
*654In the alternative, the case should be remanded for a new trial in which the jury would be allowed to know the true non-adversary status of the plaintiffs and the defendant, Luther Jenkins, which status was created by their settlement agreement. Defendant Jenkins (d/b/a Blue Ribbon Cleaners) settled with the plaintiffs for $45,000, but remained in the trial as an ostensible adversary against plaintiffs. Jenkins’ testimony and cooperation with plaintiffs were obviously instrumental in the jury’s verdict against Bock alone for $250,000 to compensate for the total damages suffered by plaintiffs. Over the objection of Bock, the settlement agreement was kept secret from the jury, which was totally ignorant of the $45,000 payment made by Jenkins to the plaintiffs and the absolute indemnity agreement which plaintiffs had given Jenkins against any further liability to anyone by reason of the accident.1
Bock Entitled to Judgment As a Matter of Law
The uncontroverted evidence establishes that the Bock extractor was designed and manufactured in 1957 in accordance with techniques then common to manufacturers in the same industry, and that the machine worked satisfactorily for eighteen years after shipment to the original purchaser.2 There was no evidence that the machine was defectively designed or manufactured at the time it left Bock’s plant in 1957, or that it was unreasonably dangerous to the purchaser or user at that time. Neither was there evidence of any such dangerous condition at the time the extractor was purchased by Jenkins as a secondhand machine in 1968. Jenkins’ testimony was un-contradicted that the machine, including the lid-locking safety device, worked satisfactorily from the day he purchased the machine until the accident on September 1, 1975. It is further undisputed that the lid-locking safety device failed to become engaged on the day of the accident because of deterioration and shrinkage of the rubber mounting pads due to long use, wear, tear and possible contact with a petroleum product during the intervening years.3 The four rubber mounting pads on the bottom frame of the machine were to prevent vi*655bration and noise. They had an original thickness of three-eighths of an inch. By September 1,1975, after 18 years of use and without any known inspection or replacement as recommended in Bock’s manual of instructions, one or more had shrunk one-eighth of an inch, thus lowering the superstructure so that the automatic lid-closing safety device did not go into operation.
Strict liability as to Bock depends as a matter of law, not upon whether a defect in the machine existed on the date of the accident in 1975, but whether this machine (and any others of the same design) was unreasonably dangerous at the time it left Bock’s plant in 1957. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Section 402A, Restatement of Torts 2d (1965).
Paraphrasing Henderson, supra: The question is whether the Bock extractor, and all extractors of the same design, were unreasonably dangerous from the time of manufacture. Did some feature of the form or material or operation of the extractor threaten harm to persons using the extractor to the extent that any extractor so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks involved in its use or to the extent that the extractor would not meet the reasonable expectations of the ordinary user as to its safety? The Bock extractor proved to be a safe machine so long as it was properly maintained.
Section 402A does not make manufacturers liable for subsequent defects caused by normal wear and tear, misuse or failure of normal maintenance by the purchaser. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Comment g., Section 402A, Restatement of Torts 2d (1965). In Kuisis, supra, the Supreme Court of Pennsylvania said:
“. . . The age of an allegedly defective product must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact. But in certain situations the prolonged use factor may loom so large as to obscure all others in a case. . . . ”
Section 402A, supra, makes it quite clear that the seller or manufacturer is not liable when he delivers the product in a safe condition and subsequent mishandling, neglect, or failure to maintain, renders the product harmful or dangerous. This rule fits the undisputed facts of the present case. Bock warned in its manual of instructions that the rubber pads should be inspected yearly and replaced when necessary. Further, it placed a metal nameplate on the front of its extractor, which notified all subsequent owners as follows: “Read instructions for operation and care of machine before using.” A photo of this metal plate, showing the exact size, and a photo of the extractor, are reproduced herewith to show the prominence given to this notice concerning the instructions for operation and care of the machine.
[See following illustration.]
*656[[Image here]]
Photo of plate affixed to the Bock extractor.
[[Image here]]
Photo of extractor, showing location of the above metal plate.
When Bock shipped the extractor to the original Texas purchaser in 1956, it had with it a Warranty and Registration Card which read in part: “Bock Extractors are guaranteed to be of the highest quality. They will give many years of satisfactory service if properly maintained . It is the user’s responsibility to operate this machine in accordance with the related instructions.’’ (Emphasis supplied.) The warranty recited that it would be void, “If the ‘Bock’ nameplate [above] is removed or altered in any way.” Also accompanying the machine was a printed sheet entitled “Installation and Operating Instructions” on which it was stated under the heading of Maintenance: “Brake Friction Facing and Rubber Mountings should be inspected at least annually and replaced when necessary.” The packet also had a four-page folder entitled “Operating and Maintenance Instructions” which advised: “Inspect, Cor*657rect or Replace as Necessary . . . The Trunion and Bumper Rubbers. — The Rubber Parts should be replaced if there is any free play or if it has lost its liveliness.” Another enclosure was a “Parts Price List” which carried under “Parts Most Frequently Required” a set of four “Bumper Rubbers” [heretofore referred to as rubber mountings] for one dollar, with the suggestion that an $8.00 kit containing these and other spare parts be maintained on hand.
The record does not show what happened to these instructions for operation and care of the machine after it was shipped to the original purchaser in 1957. However, Jenkins testified that United had no copy of the instructions to deliver to him when he purchased the machine in 1968, and that he did not write Bock at the address shown on the machine to obtain a copy of such instructions. Jenkins was a trained and experienced mechanic, having done the repair and maintenance work on his own laundry machines for many years. At one time he had owned six different laundries and knew how to maintain the machines. He testified that he realized the importance of obtaining the instructions for operation and maintenance from the manufacturer, and he obtained from United written instructions with reference to another machine purchased from United on the same date. He did not notify Bock of his purchase or location or ask for a set of instructions because he felt like he could operate the machine from his own experience “about as well as he could learn from the instruction book.” However, Jenkins admitted that he had never inspected, oiled, or repaired the machine during the seven years that he owned and continuously operated it prior to the accident. He said he knew there was some type of safety device on the machine that prevented the tub from spinning while the lid was open, but he did not know how it worked. Jenkins admitted that in his laundry business he did not conduct inspections and preventive maintenance, but usually ran his equipment until it broke down and then fixed it.
It is clear from Jenkins’ undisputed testimony that he neglected and mishandled the machine by failing to obtain an instruction booklet and failing for seven years to inspect the rubber pads which the manufacturer contemplated that the owner would inspect at least annually, with replacement of the rubber parts when they had become worn or deteriorated. As a matter of law, this failure to inspect and maintain the eleven-year old machine for an additional seven years should relieve the manufacturer of any liability for deterioration of rubber pads, the maintenance and replacement of which were contemplated from the beginning to be the responsibility of the purchaser and operator.
The jury found that Jenkins was negligent (a) in operating and maintaining the extractor machine or in permitting it to be operated by the public without proper maintenance and repair; (b) in failing to inspect the machine; (c) in failing to comply with written instructions placed on the nameplate of the machine; and (d) in failing to obtain a manual of instructions. It failed to find, however, that any of such acts of negligence was a proximate cause of the occurrence in question. As heretofore indicated, the record establishes without dispute that the malfunction on September 1, 1975, was caused by the lack of inspection, maintenance, and replacement of the deteriorated rubber mounting pads. This responsibility for maintaining the extractor in the safe condition in which it was sold rested with Jenkins. It was his failure to discharge that duty that resulted in the injury. Such was the holding as a matter of law by the Arizona Supreme Court in a very similar case where a five and one-half year old extractor was involved. Rogers v. Unimac County, Inc., 115 Ariz. 304, 565 P.2d 181 (1977). See also Westerberg v. School Dist. No. 792, Todd County, 276 Minn. 1, 148 N.W.2d 312 (1967), a case which involved lack of maintenance of a six-year old extractor. Liability for failure to maintain an 18 year old machine should not be visited upon a manufacturer who was not responsible for the maintenance nor contributed to the lack of it. Bond v. Transairco Company, 514 F.2d 642, 645 (5th Cir., 1975). See *658also Kuisis v. Baldwin-Lima-Hamilton Corp., supra; Comment g. of Sec. 402A, supra.
For the reasons stated above, I would affirm the judgments of the lower courts.
.The Court has not given further consideration to this point because it was not specified as a grounds for rehearing. Rule 515, Texas Rules of Civil Procedure. Accordingly, I must be content to state that as to future cases, agreements of this nature should not be kept from the jury solely because the settling defendant had no direct financial interest in plaintiffs recovery against a non-settling defendant. It is equally important that the jury know of a plaintiffs receipt of a substantial settlement in exchange for an indemnity agreement which results in plaintiff seeking total recovery against a non-settling defendant. In any event, the financial interest of the settling defendant is not the only feature of the “Mary Carter” type of agreements mentioned in General Motors Corp. v. Simmons, 558 S.W.2d 855, 858 (Tex. 1977), as tending to undermine the adversary nature and integrity of the proceedings against the non-settling defendant. As recognized in Simmons, secrecy concerning the agreement is the principal evil to be avoided in such cases, because the “jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants.” For instance, it is unlikely that the jury verdict in this case would have left the entire blame for total damages to the extent of $250,000 on Bock alone if it had known that Jenkins had already made a substantial settlement with plaintiffs and that plaintiffs and Jenkins did not in fact occupy the adversary role which they played throughout the trial.
. The machine was shipped from Bock’s plant in Toledo, Ohio, to the original Texas purchaser, Leon Crim Furniture Co., on February 6, 1957. Title subsequently passed through intervening users and United Furniture Company to Jenkins (d/b/a Blue Ribbon Cleaning Center) at Henderson, Texas, on July 24, 1968. The machine worked satisfactorily until the time of the accident on September 1, 1975.
. Plaintiffs expert, Stern, testified that, upon examination after the accident, he found that the rubber mounting pads “had shrunk, they had deteriorated.” He said that such shrinkage had rendered the safety device inoperative and that the shrinkage or deterioration was due to: “Two prime things, which one would be age or time, and the other would be that the rubber was attacked by a petroleum product . . .” He said that the deterioration was due also to wear and tear during the long period of time. Jenkins’ expert, Dr. Perry, agreed that the rubber pads, especially the one nearest the oil *655spout, had deteriorated and thus allowed the working part of the machine to drop enough to prevent the safety device from operating. He said the deterioration could have resulted from oil or from ozone, or from a combination thereof, plus the heat from the motor over a long period of time.