Brown v. Wichita State University

• Decision Date: 09 June 1975
• Docket Number: No. 47363,47363
• Citation: 540 P.2d 66,217 Kan. 279
• Parties: Marvin G. BROWN, Sr., et al., Appellants, v. WICHITA STATE UNITERSITY et al., Appellees. Mike BRUCE et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees. Hallie Eugene ROBINSON, Individually and as the Administratrix of the Estate of Eugene Robinson, et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees.
• Court: Kansas Supreme Court

Page 66

540 P.2d 66

217 Kan. 279

Marvin G. BROWN, Sr., et al., Appellants, v. WICHITA STATE UNITERSITY et al., Appellees.

Mike BRUCE et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees.

Hallie Eugene ROBINSON, Individually and as the Administratrix of the Estate of Eugene Robinson, et al., Appellants, v. WICHITA STATE UNIVERSITY et al., Appellees.

No. 47363.

Supreme Court of Kansas.

June 9, 1975.

Syllabus by the Court

1. It is an established principle of contract law that a person may avail himself of a promise made by a second party to a third party for the benefit of the first party, although the first was not a party to the contract and had no knowledge of it when made.

2. A valid and binding contract is essential to the right of the third party beneficiary to maintain an action.

3. What constitutes agency, and whether there is any competent evidence reasonably tending to prove such a relationship, is a question of law.

4. The test to determine if the alleged agent possesses implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency, in which event the relation may be held to exist, notwithstanding either a denial by the alleged principal or whether the parties understood it to be an agency.

5. While an agency relationship may be implied from a single transaction, it is more readily inferable from a series of transactions.

6. An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third parties to believe to be his agent, even though no authority, either express or implied, has been conferred upon him.

7. Ratification is the adoption or confirmation by a principal of an act performed 8. Upon acquiring knowledge of his agent's unauthorized act, the principal should promptly repudiate the act, otherwise it will be presumed he has ratified and affirmed the act.

on his behalf by an agent which act was performed without authority.

9. The liability of a principal for the negligent acts of his agent is determined by whether the agent was engaged in the furtherance of the principal's business to such a degree that the principal had the right to direct and control the activities of the agent.

10. The natural, reasonable implication of the facts presented in the instant case is that the parties intended to create an agency relationship, and, therefore, the Physical Education Corporation is the corporate agent of Wichita State University and the athletic director, who was an officer of that corporation, had the implied power and authority to bind the university.

11. Under the facts and circumstances presented, Wichita State University cannot purposely delegate to a corporate entity, or otherwise, its responsibility for conducting intercollegiate athletic activities, directly control that corporate agent, and then disclaim any liability. The record on appeal discloses the University maintained such a close relationship with the Physical Education Corporation that it may be considered a mere instrumentality of the University.

12. No absolute tests exist by which it may be determined whether a statute is directive or mandatory.

13. The provisions of K.S.A.1974 Supp. 76-721 are directive, and as such, require implementing rules or regulations by the Board of Regents. Absent rules or regulations of the Board of Regents, Wichita State University cannot use K.S.A.1974 Supp. 76-721 to deny the validity of the Aviation Service Agreement following execution and partial performance. Common honesty forbids repudiation now.

14. The doctrines of governmental and sovereign immunity were held to exempt governmental entities from privately instituted civil suits without the express consent of the sovereign, and represented a significant departure from the common-law doctrine of respondeat superior.

15. The doctrine of governmental immunity is an historical anachronism which manifests an inefficient public policy and works injustice upon everyone concerned.

16. The political truths contained in Sections 1 and 2 of the Kansas Bill of Rights have the same effect as the clauses of the Fourteenth Amendment to the Constitution of the United States relating to due process and equal protection of the law.

17. Section 18 of the Kansas Bill of Rights guaranteeing to every person a remedy by due course of law for injury done him in person, reputation or property means for such wrongs that the recognized by the law of the land the courts shall be open and afford a remedy, or that laws shall be enacted giving a certain remedy for all injuries or wrongs.

18. It is the primary duty of the courts to safeguard the declaration of rights and remedies guaranteed by the constitutional provisions insuring a remedy for all injuries.

19. The doctrine of governmental immunity was not established to condone the deliberate failure of governmental bodies to comply with the law, nor does such doctrine apply to an action commenced by third party beneficiaries for breach of contract for failure of Wichita State University to procure passenger liability insurance with limits satisfactory and in accordance with pertinent federal regulations.

20. The record in an action sounding both in tort and contract commenced by multiple plaintiffs against Wichita State University to recover damages for wrongful death and personal injuries, is examined, and, as more fully set forth in the opinion, it is held: 1) The doctrine of governmental John W. Norman, of Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, Okl., argued the cause, and Ronald D. Heck, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, and David W. Kennedy, Law offices of Jack H. Greene, Wichita, were with him on the brief for appellants.

immunity as declared in K.S.A. 46-901, 902 is unconstitutional and void as (a) denying equal protection of the law, (b) violating the guarantee of due process of law, both as provided by the Fourteenth Amendment to the Constitution of the United States and Sections 1 and 2 of the Kansas Bill of Rights, and (c) as violating the guarantees declared in Section 18 of the Kansas Bill of Rights; 2) the Physical Education Corporation is the agent of Wichita State University, and its athletic director, as an officer of the corporate agent, had the implied power and authority to bind the principal, Wichita State University, when he executed the Aviation Service Agreement, thus making the University subject to liability for negligent acts of its corporate agent under the doctrine of respondeat superior; 3) intercollegiate football is a proprietary function, and the transporting of players and others to a scheduled away intercollegiate football game is likewise a proprietary function of the University; 4) the Aviation Service Agreement as executed was a contract between Golden Eagle Aviation and Wichita State University and the plaintiffs may avail themselves of a promise made by the University to Golden Eagle to procure passenger liability insurance for their benefit and the benefit of their decedents, and the failure of the University to procure such insurance through the fault or neglect of its officers or agents will render it liable for any damages resulting therefrom, and 5) the district court erred in sustaining the defendant-appellee's motion for summary judgment.

Paul B. Swartz, of Martin, Pringle, Schell & Fair, Wichita, argued the cause, and J. Taylor Neuschwander, Wichita, was with him on the brief for appellees.

FATZER, Chief Justice:

This is an appeal from an order of the district court sustaining the defendant-appellee Wichita State University's motion for summary judgment.

The appeal arises out of the crash of a chartered aircraft carrying members of the 1970 Wichita State University football team, members of the faculty, and university supporters. The plaintiffs-the appellants-are either surviving passengers or the personal representatives of those killed in the crash. The chronology of events giving rise to this action follows:

On July 21, 1970, an Aviation Service Agreement was executed by Golden Eagle Aviation, Inc., and Wichita State University for the period commencing September 11, 1970, and ending November 14, 1970-the scheduled 1970 football season. That agreement, appended as Appendix A to this opinion, was executed by Bruce J. Danielson on behalf of Golden Eagle, and by Bert Katzenmeyer, Athletic Director of Wichita State University on behalf of that institution. It was attested to by Floyd W. Farmer, Secretary of Wichita State University Physical Education Corporation, Inc.

For convenience of the reader the defendant Wichita State University is hereafter referred to as the appellee, Wichita State University, Wichita State, WSU, or the University; the defendant Wichita State University Physical Education Corporation, Inc., is hereafter referred to as Physical Education Corporation, or PEC.

Pursuant to the terms of the agreement, Golden Eagle was to provide a qualified flight crew and other ancillary services for the aircraft to be used by Wichita State in transporting the members of its football team and other personnel to scheduled games at other universities. Wichita State On Friday, October 2, 1970, members of the Wichita State football party departed Wichita, Kansas, in two Martin 404 aircraft for Logan, Utah, for a football game with Utah State University scheduled for Saturday, October 3, 1970.

was to lease the aircraft described in the agreement as 'One Douglas DC-6B' from a third party and to provide passenger liability insurance as prescribed by federal regulations.

When the Martin 404 aircraft, No. N464M, took off from Denver, Colorado, an intermediate stop, it was 2,900 pounds in excess of the allowable taking-off weight as prescribed by aircraft specifications of the Federal Aviation Administration. (1 Nat'l. Trans....