C. E. Morris Co. v. Foley Const. Co.

• Citation: 8 O.O.3d 261,376 N.E.2d 578,54 Ohio St.2d 279
• Decision Date: 24 May 1978
• Docket Number: No. 77-594,77-594
• Parties: , 8 O.O.3d 261 The C. E. MORRIS COMPANY, Appellant, v. FOLEY CONSTRUCTION COMPANY, Appellee.
• Court: United States State Supreme Court of Ohio

Page 279

54 Ohio St.2d 279

376 N.E.2d 578, 8 O.O.3d 261

The C. E. MORRIS COMPANY, Appellant, v. FOLEY CONSTRUCTION COMPANY, Appellee.

No. 77-594.

Supreme Court of Ohio.

May 24, 1978.

Syllabus by the Court

Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.

The instant cause arises out of a dispute concerning the amount due on a purchase order for fabricated steel submitted in August 1968 by appellee, the Foley Construction Company (hereinafter Foley), to appellant, The C. E. Morris Company (hereinafter Morris).

In July 1968 Foley was awarded a highway construction contract by the state of Ohio. A month later, Foley submitted a purchase order to Morris to fabricate steel for four bridges to be built pursuant to the highway project. After delivering the fabricated steel in July 1969, Morris billed Foley. Foley withheld $20,000 and Foley filed a counterclaim for $66,074.20 which it alleged to have sustained as a result of Morris' July delivery of fabricated steel.

The trial court granted judgment for Morris on the grounds that the parties had not contracted that Morris "deliver structural steel by any specific date" and that the steel was eventually delivered. The Court of Appeals for Franklin County found that the parties had contracted for a March delivery date which Morris failed to meet and reversed the trial court. This court denied Morris' subsequent motion to certify. On remand, the trial court held that Foley's "own acts or omissions resulted in substantial delay in finishing the job on time" and that Morris' July delivery "was not the proximate cause of any damages (suffered) by the defendant Foley." On appeal the Court of Appeals (one member dissenting) found that the trial court's ruling on proximate cause was not supported by the evidence and reversed the trial court once again.

The cause is now before this court pursuant to an allowance of a motion to certify the record.

Vorys, Sater, Seymour & Pease and Thomas M. Taggart, Columbus, for appellant.

Knepper, White, Arter & Hadden, John A. Jenkins and Donald G. Paynter, Columbus, for appellee.

WILLIAM B. BROWN, Justice.

The main issue raised by the instant cause is whether the trial court's ruling that the July delivery of steel was not the proximate cause of damages suffered by Foley was correctly determined by the Court of Appeals to be against the manifest weight of the evidence. ¹

Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. See Chicago Ornamental Iron Co. v. Rook (1915), 93 Ohio St. 152, 160, 112 N.E. 589; Portage Markets Co. v. George (1924), 111 Ohio St. 775, 146 N.E. 283 (paragraph one of the syllabus); and 3 Ohio Jurisprudence 2d 817, Appellate Review, Section 820, and the cases cited therein.

The trial court's determination that the late steel delivery was not the proximate cause of Foley's failure to complete the highway on time is supported by such evidence. Trial testimony revealed that Foley requested a March steel delivery date from Morris and that Morris did not deliver the steel until July. However, there was also testimony that, while Foley completed the project 41 days late ², it was on schedule when Morris delivered its steel. Witnesses also testified that, for 45 days after Morris delivered its steel and Foley could have begun to use that steel in bridge...