Opinion
No. 69-622.
February 19, 1971.
Appeal from the Circuit Court for Lee County, Archie Odom, J.
Frank B. Watson, Jr., of Roberts, Watson, Taylor McNeil, Fort Myers, for appellants.
Larry A. Echols, of Ahrenholz Echols, Fort Myers Beach, for appellee.
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 for a new trial.
McNULTY, J., concurs.
MANN, J., concurs specially with opinion.
I agree that the failure to give the promised instruction was error. Our Supreme Court has taken the position that a disclaimer of liability contained in a contract of this sort is ineffectual to preclude recovery in a contract action. Corneli Seed Co. v. Ferguson, Fla. 1953, 64 So.2d 162. See also Fla. Stat. §§ 672.2-302, 672.2-316 (1969), F.S.A. A fortiori, it should be of no effect in an action based on negligence. See Frumer and Friedman, Products Liability § 19.07(1).
On the trial of this case defendant's counsel told the jury: "Fortunately, this case has been put in its proper perspective — we don't always get this opportunity — because Mr. Aloia, sitting here, has sustained no real loss, so the real party in interest is his carrier. So the natural, perhaps subconscious thing, is to perhaps sympathize with the homeowner. There is no need here for that; we can be completely objective." While we judges cannot abolish human prejudice, we are not powerless to prevent blatant appeal to prejudice. Equal justice under law is as much the right of an insurance company as it is of any individual.
Fla.R.Civ.P. 1.210, 30 F.S.A. allows the real party in interest to sue or to be brought into an action. That procedure was not followed here.