{ "id": 706792, "name": "Lucy ROMERO, Plaintiff-Appellant, v. MERVYN'S and Dennis Wulff, Defendants-Appellees", "name_abbreviation": "Romero v. Mervyn's", "decision_date": "1987-10-06", "docket_number": "No. 17153", "first_page": "389", "last_page": "390", "citations": [ { "type": "official", "cite": "106 N.M. 389" }, { "type": "parallel", "cite": "744 P.2d 164" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "101 N.M. 334", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586339 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "337" }, { "page": "1114" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0334-01" ] }, { "cite": "84 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766687 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "215" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0211-01" ] } ], "analysis": { "cardinality": 337, "char_count": 5755, "ocr_confidence": 0.792, "pagerank": { "raw": 5.735231816093854e-08, "percentile": 0.359298360638014 }, "sha256": "09b815cff389debee81ebb4ba2176ea3d394b686da32929030b19a4f34e3ae20", "simhash": "1:e8935839f02c8588", "word_count": 942 }, "last_updated": "2023-07-14T15:27:22.270695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "STOWERS and RANSOM, JJ., concur." ], "parties": [ "Lucy ROMERO, Plaintiff-Appellant, v. MERVYN\u2019S and Dennis Wulff, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSOSA, Senior Justice.\nPlaintiff-appellant, Lucy Romero (Romero), appeals the judgment of the trial court in favor of defendants-appellees, Mervyn\u2019s and Dennis Wulff. In a two-count complaint Romero alleged: (Count one) that Mervyn\u2019s was negligent in not controlling crowds in its retail department store and that as a result of this negligence, she was injured by falling down an escalator; (Count two) that Mervyn\u2019s was bound by the promise of its operations manager, Wulff, who allegedly told Romero that Mervyn\u2019s would pay for any medical bills related to her fall. The trial court granted defendants\u2019 motion for summary judgment as to count two. Prior to trial Romero tendered testimonial evidence of Wulff\u2019s statement that Mervyn\u2019s would pay Romero\u2019s medical bills. The court ruled that it would not allow such testimony into evidence. The jury returned a verdict in favor of defendants as to count one. Romero moved for a new trial, but her motion was denied. On January 27, 1986, the court entered judgment on the verdict. Romero appeals the judgment as to count one and the summary judgment as to count two. We reverse in part and affirm in part.\nTHE ISSUE RAISED BY THE SUMMARY JUDGMENT.\nThe circumstances surrounding Romero\u2019s fall from Mervyn\u2019s escalator are not disputed, nor are they relevant here. The only dispute concerns Romero\u2019s allegation that Mervyn\u2019s operations manager, Dennis Wulff, told her and her daughter, in the daughter\u2019s words, \u201cIf you need any medical care, just let us know.\u201d The daughter also testified that on a second occasion Wulff told her, \u201cWhen she does go to the doctor, have them send the bills to Mervyn\u2019s.\u201d Wulff explicitly denied making any statement in which he offered on Mervyn\u2019s behalf to pay Romero\u2019s medical expenses. Immediately before trial began the trial court granted defendants' motion for summary judgment as to count two of the complaint, stating as follows: \u201cI am going to assume he made a promise to pay, but authority to make such a promise on behalf of Mervyn\u2019s has been denied. The agent acted without authority. It doesn\u2019t bind the principal.\u201d\nWe disagree with the trial court\u2019s ruling. In stating that the agent acted without authority, the trial court ruled on a disputed factual matter which Romero was entitled to have the jury consider. \u201cThe issue of [an agent\u2019s] authority generally, whether actual or apparent, is usually one of fact.\u201d Pribble v. Aetna Life Ins. Co., 84 N.M. 211, 215, 501 P.2d 255, 259 (1972). Here Romero contested the very fact which the trial court deemed concluded \u2014 namely, whether or not Wulff was acting within his authority to bind Mervyn\u2019s to the purported promise. \u201cA principal is bound by the actions taken under the apparent authority of its agent if the agent is in a position which would lead a reasonably prudent person to believe that the agent possessed such apparent authority.\u201d Tabet v. Campbell, 101 N.M. 334, 337, 681 P.2d 1111, 1114 (1984). The jury should have been permitted to consider whether a reasonably prudent person would have been led to believe that Wulff possessed apparent authority to bind Mervyn\u2019s to pay Romero\u2019s medical expenses. Accordingly, we reverse the summary judgment, and remand the case to the trial court with instructions to conduct a trial on the issues raised in count two of the complaint.\nTHE ISSUE RAISED BY THE COURT\u2019S EXCLUSION OF TESTIMONY AS TO WULFF\u2019S PURPORTED OFFER.\nPrior to trial on count one, the court excluded testimony as to Wulff\u2019s purported offer, stating, \u201c[t]here\u2019s two rules, 408 and 409. 409 provides that evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by injury is not an admission of the liability for the injury. 408 is along the same line * * * * You\u2019re offering to prove it circumstantially, but you\u2019ve got a direct admission. So I am holding it out. Let\u2019s bring in the jury.\u201d The trial court correctly relied on SCRA 1986, 11-408 and 409 (known as Rules of Evidence 408 and 409).\nRule 408 prohibits \u201c[e]vidence of * * * furnishing or offering or promising to furnish * * * a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount.\u201d Such evidence is inadmissible \u201cto prove liability for or invalidity of the claim or its amount * * * * This rule * * * does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness ****\u2019\u2019 Ruie 409 states, \u201cEvidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible as an admission of liability for the injury.\u201d The correct procedure here would have been for the trial court to have admitted Romero\u2019s testimony as to Wulff\u2019s statement, and to have issued a caution to the jury to consider the testimony only insofar as it applied to count two. Since, however, the jury has now decided in defendant\u2019s favor as to count one, such a caution on retrial would be pointless. On retrial as to count two, Romero may introduce evidence of Wulff\u2019s statement for the purpose of establishing that Wulff had actual or apparent authority to bind Mervyn\u2019s to pay Romero\u2019s medical expenses. The judgment as to count one is affirmed. The summary judgment is reversed, and the case is remanded for a trial on the issues raised in count two of the complaint.\nIT IS SO ORDERED.\nSTOWERS and RANSOM, JJ., concur.", "type": "majority", "author": "SOSA, Senior Justice." } ], "attorneys": [ "Klecan & Santillanes, Janet Santillanes, Albuquerque, for plaintiff-appellant.", "Michael P. Watkins, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "744 P.2d 164\nLucy ROMERO, Plaintiff-Appellant, v. MERVYN\u2019S and Dennis Wulff, Defendants-Appellees.\nNo. 17153.\nSupreme Court of New Mexico.\nOct. 6, 1987.\nKlecan & Santillanes, Janet Santillanes, Albuquerque, for plaintiff-appellant.\nMichael P. Watkins, Albuquerque, for defendants-appellees." }, "file_name": "0389-01", "first_page_order": 429, "last_page_order": 430 }