Vanek v. Kirby

454 P.2d 647 (1969)

Keith Frank VANEK, Appellant, v. Lynn KIRBY, Dba Lynn Kirby Ford, and Ford Motor Company, a Delaware Corporation, Respondents.

Supreme Court of Oregon, In Banc.

Submitted on Petition for Rehearing Filed March 25, 1969.

Decided May 21, 1969.

Mautz, Souther, Spaulding, Kinsey & Williamson and Roland F. Banks, Jr., Portland, for petitioner.

Buss, Leichner, Lindstedt, Rose & Barker, Portland, contra.

Submitted on Respondent Ford Motor Company's Petition for Rehearing Filed March 25, 1969.

O'CONNELL, Justice.

Defendant Ford Motor Company petitions for a rehearing contending that the complaint did not state a cause of action because it failed to allege that the vehicle was in a defective condition at the time it left defendant's hands. Assuming, without deciding, that such an allegation is necessary to state a cause of action for the sale of a defective product (2 Restatement of Torts, § 402A), the contention was not raised on the original hearing and will not, therefore, be considered on a petition for rehearing.

Our statement in the original opinion that the allegations in the complaint were sufficient to state a cause of action was in answer to defendant's contention that the defect in the vehicle was not alleged with sufficient particularity. We did not intend to hold that the sufficiency of the complaint could not have been attacked on other grounds, or that upon remand defendant was precluded from testing the sufficiency of the complaint in other respects.

Petition denied.