Romero v. Mervyn's

• Decision Date: 06 October 1987
• Docket Number: No. 17153,17153
• Citation: 1987 NMSC 99,744 P.2d 164,106 N.M. 389
• Parties: Lucy ROMERO, Plaintiff-Appellant, v. MERVYN'S and Dennis Wulff, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 164

744 P.2d 164

106 N.M. 389

Lucy ROMERO, Plaintiff-Appellant, v. MERVYN'S and Dennis Wulff, Defendants-Appellees.

No. 17153.

Supreme Court of New Mexico.

Oct. 6, 1987.

[106 NM 389] Klecan & Santillanes, Janet Santillanes, Albuquerque, for plaintiff-appellant.

Michael P. Watkins, Albuquerque, for defendants-appellees.

OPINION

SOSA, Senior Justice.

Plaintiff-appellant, Lucy Romero (Romero), appeals the judgment of the trial court in favor of defendants-appellees, Mervyn's and Dennis Wulff. In a two-count complaint Romero alleged: (Count one) that Mervyn's 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's was bound by the promise of its operations manager, Wulff, who allegedly told Romero that Mervyn's would pay for any medical bills related to her fall. The trial court granted defendants' motion for summary judgment as to count two. Prior to trial Romero tendered testimonial evidence of Wulff's statement that Mervyn's would pay Romero's 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.

THE ISSUE RAISED BY THE SUMMARY JUDGMENT.

The circumstances surrounding Romero's fall from Mervyn's escalator are not disputed, nor are they relevant here. The only dispute concerns Romero's allegation that Mervyn's operations manager, Dennis Wulff, told her and her daughter, in the daughter's words, "If you need any medical care, just let us know." The daughter also testified that on a second occasion Wulff told her, "When she does go to the doctor, have them send the bills to Mervyn's." Wulff explicitly denied making any statement in which he offered on Mervyn's behalf to pay Romero's 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: "I am going to assume he made a promise to pay, but authority to make such a promise on behalf of Mervyn's has been denied. The agent acted without authority. It doesn't bind the principal."

We disagree with the trial court's 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. "The issue of [an agent's] authority generally, whether actual or apparent, is usually one of fact." 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--namely, whether or not Wulff was acting within his authority to bind Mervyn's to the purported promise. "A principal is bound by the actions taken under the apparent authority of its...