HOBSON, Acting Chief Judge. Plaintiff-appellants, Patsy and Elvira Aloia, sued defendant-appellee Carrier Corporation, d/b/a Modern Air Conditioning, Inc., as a result of a fire occurring in plaintiffs’ home after defendant’s employees had serviced an air conditioning and heating unit installed by defendant when the home was built. The trial resulted in a jury verdict for defendant and plaintiffs have appealed, assigning as error numerous events occurring during the trial, including the court’s failure to give a requested jury instruction.
During the course of the trial the contract for the installation of the heating and cooling unit was introduced into evidence. The jury was permitted to take this contract into the jury room to use during its deliberations. The contract contained a clause which read: “We [Modern Air Conditioning, Inc.] shall not be liable for damages resulting from the use and/or installation of the equipment specified herein.” Prior to the court’s instructing the jury the plaintiffs maintained, and the court agreed, that the clause was ineffective and not a valid defense against their claim.
This ruling by the trial court was correct and is not assigned as error in this appeal. Although the court agreed to instruct the jury as to the impotency of the clause, it failed to do so upon charging the jury. It is well within the realm of possibility that the members of the jury considered the disclaimer effective and dispositive of the question of liability. The court’s failure to give the agreed upon instruction, although the omission was obviously inadvertent, is reversible error. The judgment is reversed and the cause remanded far a new trial. McNULTY, J., concurs.
MANN, J., concurs specially with opinion.