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04/09/91 TED MARKLAND v. TRAVEL TRAVEL SOUTHFIELD

April 9, 1991

TED MARKLAND, SHARON MARKLAND, ROGER MARKLAND AND ELSIE MARKLAND, PLAINTIFFS-APPELLANTS,
v.
TRAVEL TRAVEL SOUTHFIELD, INC., D/B/A TRAVELPLEX SOUTHFIELD, INC., DEFENDANT-RESPONDENT



Appeal from the Circuit Court of the County of St. Louis; Honorable J. Edward Sweeney.

James A. Pudlowski, Presiding Judge. Kent E. Karohl and Stanley A. Grimm, JJ., concur.

The opinion of the court was delivered by: Pudlowski

On December 24, 1988, appellants, Ted and Sharon Markland and Roger and Elsie Markland (hereinafter the Marklands) requested the respondent, Travel Travel Southfield, Inc. (hereinafter Travel Travel) to arrange airline and hotel accommodations for them to St. Croix, United States Virgin Islands. At that time, Sharon instructed Travel Travel that the Marklands wanted to spend their vacation during the first two weeks in March, 1989, at St. Croix and that they desired to stay at the Hotel On the Cay. She also testified that Travel Travel should change the dates of the trip if it was unable to book them into the Hotel On the Cay during the time period that she had specified.

Subsequently, Travel Travel arranged for such trip on Eastern Airlines (hereinafter Eastern) and Flyfaire Vacations (hereinafter Flyfaire), a subsidiary of Eastern. On December 27, 1988, Travel Travel mailed a confirmation to the Marklands that they were booked on a vacation to St. Croix for fourteen nights at the Hotel On the Cay for the first two weeks of March, 1989. The confirmation statement indicated that the Marklands would be traveling on Eastern Airlines. *fn1 The confirmation statement also included Travel Travel's standard "customer disclosure notice" *fn2 printed in small type at the top of the form. Included in this "customer disclosure notice" was Travel Travel's disclaimer for any breach of contract in regard to their travel suppliers. The disclosure advises any traveler that they should purchase appropriate insurance coverage in case of any loss. Testimony at trial indicated that if Travel Travel had followed their normal routine business procedures, a travel insurance application also would have been included with the confirmation statement. The Marklands testified that no travel insurance application was ever received by them at any time.

On January 10, 1989, the Marklands received an invoice from Travel Travel in the amount of $6,548.00, which they promptly paid. Again, printed at the top of this invoice was the "customer disclosure notice." Travel Travel stated at trial that a travel insurance application should have been included with this invoice. The Marklands stated they never received any such application. One week prior to the date of departure (March 1, 1989), Ted Markland obtained both the airline tickets and the travel vouchers from the travel agency, which were to be presented to the hotel in St. Croix. Included was the passenger itinerary, dated February 17, 1989, with the "customer disclosure notice" again printed at the top of the form. Also, Judy Katzenmeyer, the travel agent that booked the Marklands' trip, testified at that time that she informed Ted Markland that Eastern was having financial problems. Her testimony in pertinent part was as follows:

Q [Mr. Bopp] Okay. At that time, did you mention anything about travel insurance?

A [Judy Katzenmeyer] Well, that's where my memory differs from Ted because I do think Eastern was then having problems, and I think I said to Ted, "Are you sure you want to do this?" And I think he said, "Yes, we'll take a chance"; but I'm not sure.

Q But that's your recollection?

A That's my recollection.

However, Ted Markland disputes this testimony.

On March 1, 1989, the Marklands left for St. Croix on their scheduled Eastern flight. Upon arriving in St. Croix they tendered their hotel vouchers for their hotel accommodations to the hotel (Hotel On The Cay). However, ten days after the Marklands arrival, the hotel informed them that their hotel vouchers were no longer valid as a result of Eastern and Flyfaire declaring bankruptcy, and that no monies had been paid to the hotel. Thus, on March 12, 1989, the Marklands had to pay the hotel an additional $4,900 for their accommodations. Also, because of the Eastern Airlines bankruptcy, the Marklands incurred additional air fare charges of $1,756 on a different airline carrier in order to return to St. Louis from St. Croix. Upon returning to St. Louis, the Marklands demanded of Travel Travel that their money be returned for both the additional hotel charges and the return airline ticket charges. This demand was refused. However, Travel Travel filed, on behalf of the Marklands, Eastern and Flyfaire bankruptcy claim forms with the bankruptcy court.

On September 26, 1989, the Marklands filed an action against Travel Travel alleging breach of contract in arranging the Marklands' "package vacation" to St. Croix and alleging $6,656 in damages for the additional travel expenditures incurred. ($1,756 for the return air fare and $4,900 for the hotel charge). On July 30, 1990, the trial court entered judgment for the Marklands against Travel Travel in the amount of $654.80. The court arrived at this figure by using the 10% commission which the travel agency is credited from Eastern on the total "package price" of the vacation which was $6,548. The trial court further ordered that Travel Travel hold for the benefit of the Marklands in trust and deliver to the Marklands all sums that may be refunded from Eastern or Flyfaire as a result of the bankruptcy reorganization proceedings either as cash, air fare credits, script or any and all other evidences of debt owned by Eastern, Flyfaire, or its subsidiaries. On August 2, 1990, the Marklands filed this appeal.

The Marklands contend on appeal that the trial court erred in awarding damages in the amount of $654.80 where there was no evidence to support such an award and they further contend that the undisputed evidence was that the Marklands incurred $6,656 in damages as a result of Travel Travel's breach of contract. *fn3

In argument to the trial court, the Marklands maintained that a travel agent is an agent of the customer and if something goes awry, the agent is liable under a breach of contract. We agree that a travel agent is an agent of the customer. As the court said in George v. Lemay Bank & Trust Co., 618 S.W.2d 671, 674 (Mo. App. 1980), the relationship of principal and agent arises out of contract, express or implied. It is an agreement whereby one person, the ...


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