Opinion
42957.
SUBMITTED JULY 10, 1967.
DECIDED OCTOBER 11, 1967. REHEARING DENIED OCTOBER 31, 1967.
Action for damages; fraud and deceit. Fulton Civil Court. Before Judge Langford.
Wilkinson, Nance Head, A. Mims Wilkinson, Jr., for appellant.
Neil L. Heimanson, for appellee.
Where, in an action for fraud and deceit by a purchaser of an automobile brought against a defendant automobile dealer, it appears from the evidence adduced on motion for summary judgment by the dealer that the automobile purchased was represented as a "new" automobile and was sold as a "new" automobile and a reduction in price given because of the new models soon to come out, and that the dealer had filed suit against another person for certain specified damage done to the automobile while in the dealer's possession, which damage had been repaired prior to the sale of the automobile to the plaintiff purchaser, this court cannot say as a matter of law that the automobile was "new" or that the representations, even if false, were immaterial and that no damage had been done the plaintiff purchaser merely because the car was placed in "new" condition before the sale. The jury must determine whether the market value of a new car is lessened by damage to it even though repaired and placed in "new" condition.
We affirm the trial judge in refusing to grant the defendant's motion for summary judgment.
Judgment affirmed. Bell, P. J., concurs. Whitman, J., concurs in the judgment only.