Stapinski v. Walsh Const. Co., Inc., No. 1079S285

• Docket Nº: No. 1079S285
• Citation: 395 N.E.2d 1251, 272 Ind. 6
• Case Date: October 16, 1979
• Court: Supreme Court of Indiana

Page 1251

395 N.E.2d 1251 272 Ind. 6 Michael L. STAPINSKI, Appellant (Plaintiff below),
v.
WALSH CONSTRUCTION CO., INC., Appellee (Defendant below). No. 1079S285. Supreme Court of Indiana. Oct. 16, 1979.

[272 Ind. 7] Saul I. Ruman, Hammond, for appellant.

Richard R. McDowell, Cadick, Burns, Duck & Peterson, Indianapolis, for appellee.

HUNTER, Justice.

This case is before this Court on the petition to transfer of defendant-appellee, Walsh Construction Co., Inc. Appellee Walsh prevailed at trial when the trial court granted Walsh's motion for summary judgment. Plaintiff-appellant, Michael L. Stapinski, appealed the trial court's order to the Court of Appeals, Third District, and that Court reversed. Stapinski v. Walsh Construction Co., Inc., (1978) Ind.App., 383 N.E.2d 473. We grant transfer and vacate the opinion of the Court of Appeals.

The issue before us is whether the trial court erred in granting Walsh's motion for summary judgment.

The following are the facts giving rise to this dispute as gleaned from Judge Staton's majority opinion and Judge Hoffman's dissenting opinion:

"On September 5, 1972, Michael Stapinski sustained serious personal injuries while driving his automobile. Stapinski was injured when a portion of the front drive shaft of a 1964 Ford truck broke loose and flew through the windshield of his car. At the time of the accident, the truck was owned and operated by Security Fence Co., Inc. ('Security'). Security had purchased the truck some fifteen months earlier from Walsh Construction Company ('Walsh'). Walsh had purchased

Page 1252

the truck new from a dealer in 1964." 383 N.E.2d at 474.

"The vehicle was one of several identical trucks purchased by Walsh and used solely to haul workmen and materials on the construction site of the Burns Harbor project. The vehicle was never licensed for regular use on public highways. Security is a specialty contractor engaged in the installation of chain link fencings and steel rolling doors. Frank Bolin, president of Security, had previously worked as a foreman for Walsh on the Burns Harbor site and knew how the trucks were utilized. Sometime after completion of the Burns Harbor project, while the trucks were parked in Walsh's equipment yard, Bolin stopped to inquire if Walsh had any trucks for sale. The reply was that Walsh would be willing to sell any of the 1964 trucks previously mentioned. Bolin was told that he could have his choice of those trucks for $600 and was given an opportunity[272 Ind. 8] to inspect the trucks at that time so as to make a selection. Bolin looked at the trucks and later sent two of Security's employees to examine the trucks and make a final selection. These employees observed that all of the trucks were old and used. They selected a truck with four-wheel drive and then were allowed to replace the tires with some from one of the remaining trucks. The salesman at Walsh was not present during this inspection and made no representations as to the condition of the truck, nor did Security inform Walsh of its intended use of the vehicle. The sale was completed 'AS IS, WHERE IS.'

"Security later picked up the truck and thereafter had the vehicle licensed for use on the public highways, safety inspected, and began using it to haul supplies and equipment to job locations. At this time Security had four other trucks and tried to maintain the vehicles such that each was lubricated and had the oil changed every month. Alan Tucker was the employee responsible for maintenance on the 1964 Ford truck. The first time that he was lubricating the truck Tucker noticed that the front one of four identical grease fittings on the universal joints was missing. He assumed that the one universal joint was self-contained and did not need to be greased.

"For purposes of the summary judgment motion the parties agreed that the front universal joint was missing a grease cap, and that failure to grease the joint caused the front drive shaft to break and injure appellant." 383 N.E.2d at 478-9.

In granting summary judgment the trial court issued the following order:

" 'Court now finds:

" 'That Walsh Construction sold the truck in question to Security Fence as is with no warranties for a little over $600;

" 'That Security Fence inspected and examined said truck prior to purchase. The truck had been used for several years by Walsh Construction on their private...