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Otte v. Ron Tonkin Chevrolet Co.

December 7, 1972

OTTE, RESPONDENT,
v.
RON TONKIN CHEVROLET CO., APPELLANT



Appeal from Circuit Court, Multnomah County. John C. Beatty, Jr., Judge.

Terry W. Baker, Portland, argued the cause for appellant. With him on the briefs were Tonkon, Galen & Baker, Portland.

James E. Redman, Milwaukie, argued the cause for respondent. With him on the brief were James R. Carskadon, Jr., and Redman & Carskadon, Milwaukie.

Tongue, Justice. O'Connell, Chief Justice, and Denecke, Holman, Howell and Bryson, Justices.

Tongue

This is an action for damages for fraud in the sale of an automobile by defendant, Ron Tonkin Chevrolet Co., to plaintiff. Defendant appeals from a judgment, based upon a jury verdict, for $500 in general damages and $4,500 in punitive damages. We affirm.

Defendant contends on appeal that the trial court erred in denying defendant's motions for a new trial because it appears from "special findings" by the jury that defendant suffered no actual damages whatever and that under ORS 17.420 such special findings are controlling over a general verdict.*fn1 The consideration of this contention requires a review of the record.

Plaintiff's complaint alleged that she purchased from defendant a 1969 Chevrolet Corvair Monza in reliance upon the following false representations:

"1. That the aforesaid automobile was the personal automobile of Mr. Ron Tonkin;

"2. That said automobile had not been sold to anyone else.

"3. That the value of said automobile was that of the proposed sale price of $2,871.00;

"4. Said automobile was covered by factory warranty."

At the conclusion of the trial proposed "special findings" were, at defendant's request, submitted to the jury, apparently pursuant to ORS 17.415. These

included the following questions, to which the following answers were given by the jury:

"Was a material misrepresentation, as defined by the Court in its instructions, made by defendant in any one of the following instances:

"1. That the automobile was a personal automobile of Mr. Ron Tonkin. Yes.

"2. That the automobile had not been sold to anyone else. Yes.

"3. That value of the automobile was that of the proposed sales ...


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