dissenting.
I disagree with the majority’s affirmance of the trial court’s grant of appellee’s motions for directed verdict and for judgment n.o.v. The majority concludes that the vehicle purchased by appellants was not “new” as that term is defined in Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (290 SE2d 497) (1982). Because I believe the question is one best left for resolution by a jury, I must dissent.
The pickup truck purchased by appellants from appellee was represented to them as being “new.” The retail installment contract described the truck as “new”; it was displayed on the lot with other new *871trucks; the salesman told them it was a new truck and they would be “extended all the courtesies” of purchasing a new truck; and a “new car warranty” of 12 months/12,000 miles accompanied the vehicle. In Horne, supra at 329, this court stated that “an intrinsic quality” of a car sold as “new” is “that it has been neither damaged nor used to any significant extent. [Cits.]” (Emphasis supplied.) In focusing on appellants’ awareness of the truck’s status as a “demonstrator” and its odometer reading of 5,979 miles, the majority has disregarded lack of damage as an integral part of the “intrinsic quality” of being a “new” vehicle. Instead, the majority concludes that given their knowledge of the mileage recorded and the demonstrator status, appellants, as a matter of law, knew the potential for the truck having been damaged and, implicitly, that they should have had a reasonable expectation that it had been damaged. In Paces Ferry Dodge v. Thomas, 174 Ga. App. 642 (331 SE2d 4) (1985), this court upheld a judgment based upon a jury verdict that a car dealership had committed an unfair or deceptive act by representing as new a vehicle that had a broken rear end alignment pin. Because I believe the question of whether the vehicle is “new” is one of fact and, consequently, should have been submitted to the jury (see Century Dodge v. Mobley, 155 Ga. App. 712, 713 (272 SE2d 502) (1980)), I dissent from the majority’s affirmance of the trial court’s actions.
Decided July 14, 1987 Rehearing denied July 30, 1987 E. Christopher Harvey, Jr., Alan C. Harvey, for appellants. Albert B. Wallace, for appellee.I am authorized to state that Judge Pope joins in this dissent.