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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 ...


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