Federal Mogul Corp. v. Universal Const. Co.

• Citation: 376 So.2d 716
• Parties: FEDERAL MOGUL CORPORATION v. UNIVERSAL CONSTRUCTION COMPANY et al. Civ. 1934.
• Decision Date: 08 August 1979
• Court: Alabama Court of Civil Appeals

Page 716

376 So.2d 716

FEDERAL MOGUL CORPORATION v. UNIVERSAL CONSTRUCTION COMPANY et al.

Civ. 1934.

Court of Civil Appeals of Alabama.

Aug. 8, 1979.

Rehearing Denied Sept. 19, 1979.

Eddie Leitman and Jackson M. Payne of Leitman, Siegal & Payne and James C. Barton of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.

S. R. Starnes and W. Stancil Starnes, Birmingham, for appellees, Universal Const. Co. and Pearce, DeMoss and Company, Inc.

W. Eugene Rutledge of Rutledge, Williams, Williams & Norton, Anniston, for appellee, Interstate Roofing Co.

Larry W. Harper of Dunn, Porterfield, Scholl & Clark, Birmingham, for appellee, Johns-Manville Sales Corp.

Clarence L. McDorman, Jr. of London, Yancey, Clark & Allen, Birmingham, for appellees, Wiley & Wilson, Inc.

HOLMES, Judge.

This is an appeal by Federal Mogul Corporation, the owner of a tapered roller bearing plant in Hamilton, Alabama, from a jury instruction limiting damages against Universal Construction Company and Pearce, DeMoss and Company, Inc., to a nominal amount. Plaintiff, Federal Mogul, further appeals from a directed verdict in favor of defendants Interstate Roofing Company, Johns-Manville Sales Corporation, and Wiley and Wilson, Inc.

Suit was brought in Jefferson County Circuit Court in July of 1976 by defendant Universal for a declaratory judgment determining the rights and responsibilities of the parties concerning the problems Federal Mogul was experiencing with the roof of its plant. After realignment the case went to trial with Federal Mogul as plaintiff and Universal (the contractor), Pearce, DeMoss and Company, Inc. (as guarantor of the contractor's performance), Interstate (the subcontractor who installed the roof), Johns-Manville (the manufacturer of the roofing materials), and Wiley and Wilson (the architects who prepared the building's plans and specifications), as defendants.

Wiley and Wilson's original specifications called for a four-ply built up roof. Federal Mogul, in an attempt to cut construction costs, requested that any bids submitted provide alternative suggestions. In response thereto, Universal proposed to use a two-ply roof known as a Twin-20 system and manufactured by Johns-Manville. Universal guaranteed this roof would perform in all aspects as well as the roof called for in Wiley and Wilson's specifications and that it was a twenty-year bondable roof.

Federal Mogul awarded the contract to Universal who in return subcontracted the construction of the roof to Interstate. Construction of the roof was completed in March or April, 1973.

The roof leaked from the beginning of plaintiff's occupancy in 1973. Interstate attempted repairs throughout the year and into 1974.

In late 1975, matters worsened, and plaintiff retained Babco Roofing Company to repair the leaks. On his first trip to the plant in November of 1975, the Babco representative indicated he felt repairs could be made. However, upon Babco's return in December of 1975 or January of 1976, ridges or buckling were found indicating a severe deterioration of the roof and structural damage. Babco determined it could not effect repairs due to this changed condition.

Plaintiff then contacted various purported experts in the roofing industry to solicit their opinions and advice. The primary basis of plaintiff's appeal is the exclusion of much of the testimony of two of these experts.

Plaintiff first complains that it was improperly denied the opportunity to prove its damages. In essence, the experts were unable to testify as to the extent of damage to the roof and its value in its damaged condition. They were also prohibited from testifying as to specifications for reroofing they had prepared. Plaintiff argues this led to an improper charge to the jury that even if it found Universal and Pearce, DeMoss liable, it could only assess nominal damages against these defendants.

Next, plaintiff complains that the experts were wrongfully denied the opportunity to express opinions as to the quality of the workmanship in installing the roof and as to the suitability of the materials used in the roofing system. It is argued that this led to an erroneous granting of directed verdict in favor of Interstate, Johns-Manville, and Wiley and Wilson.

I

Turning first to the excluded testimony itself we find the following:

The experts in question, Carl Cash and David Adler, both testified they were employed by Simpson, Gumpertz and Heger (SG&H), a firm located in Boston, Massachusetts. The Boston firm provides engineering services, preparing structural designs and specifications. It also engages in investigations of structural problems and roofing systems, having investigated numerous cases of roofing and waterproofing systems' failures throughout the country.

Witness Cash testified he was employed by SG&H as a chemist and has worked in the area of built-up roofing for more than twenty years. He has authored articles and manuals on roofing materials and standards as well as writing on the causes of built-up roofing systems' failures.

Adler testified he was a senior staff engineer of SG&H with a degree in engineering from Tufts University. He has supervised the installation of several hundred built-up roofing systems throughout his career with various firms. He has been qualified by the National Roofing Contractors Association for a technical assistance program which provides roofing consultants for various projects.

Cash made five trips to Federal Mogul's plant and after taking sample cuttings from the roof for purposes of analysis, determined it needed replacements. Pursuant to contract with plaintiff he drew up specifications for this purpose.

The trial judge at first allowed these into evidence, but upon objection by defendants which led to his ascertaining that neither Cash as an individual nor SG&H as a firm were licensed to practice architecture or engineering in the State of Alabama, ordered them expunged from the record. The apparent basis for this was his conclusion that the information Cash gained in inspecting the roof and utilized in preparing the specifications came as a direct result of his engaging in the illegal activity of practicing in Alabama as an architect or engineer without a license.

We hold it was error to exclude the specifications from the record. At this point we also note that the court further excluded a contract to reroof between plaintiff and Heritage Construction Company, based upon these specifications. The grounds for this were the same, I. e., that the construction firm was not licensed in Alabama. The court ruled the contract was void and unenforceable and therefore incompetent as evidence. Thus, plaintiff was unable to offer any evidence on the cost of replacing the allegedly defective roof.

As we find the same basic error led to the exclusion of both the specifications and the contract with Heritage, we address both of these issues at this time.

We observe the appellees raised the illegality of the documents at the trial below and also argue it in brief. Thus, they refer us to representative cases where unlicensed engineers, architects, and real estate brokers, suing to recover for their services rendered, were denied relief due to the unenforceability of their contracts. See Southern Metal Treating Co. v. Goodner, 271 Ala. 510, 125 So.2d 268 (1960).

The rationale behind these decisions is that such licensing statutes are an exercise of the police power, enacted for regulatory purposes, and designed to protect the public against fraud and imposition. Our cases hold that contracts in contravention of these statutes are void and unenforceable and refuse to allow recovery on grounds of public policy.

As plaintiff points out, an analysis of these cases reveals a common strand running throughout. All cases where the argument prevailed were litigated between immediate parties to the contract with the defendants therein raising the illegality of the agreement as a defense to the action.

However, nonparties have not been so successful. Thus, in Marx v. Lining, 231 Ala. 445, 165 So. 207 (1936), a vendor utilized interpleader when faced with the conflicting claims of two real estate brokers to the commission on the sale of the vendor's property. One of the brokers asserted the other had no claim to the commission as she was not properly licensed. He reasoned this deficiency rendered the contract between the vendor and the rival broker void and unenforceable.

Our supreme court answered this by observing that contracts which are void, not because of any intrinsic immorality, but because they offend a statutory policy, may, in some instances, be enforced in a court of law because of the inability of the party affected to plead their invalidity. In applying this doctrine, the court held that the defense of illegality, although open to the parties and those claiming under them, cannot as a general rule be invoked by third persons.

We follow that general rule today and hold it was error for the trial court to exclude the specifications and contract on the grounds of illegality. These documents were crucial to plaintiff's case on damages, and their exclusion was instrumental in leading the trial court to its erroneous charge taking the issue of damages away from the jury.

Plaintiff further complains of the ruling below that neither Cash nor Adler could testify as experts in the field of engineering. However, the trial judge did indicate he would allow them to testify as experts on roofing materials and their installation.

We hold that such a mechanistic application of labels was inappropriate. In so ruling, the court created a distinction impossible of consistent enforcement, the record illustrating that a great deal of testimony within the realm of these men's expertise was erroneously excluded.

At the outset, we acknowledge that the question of whether a witness offered as an expert is shown to be qualified is within...