Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. HARRY A. ISEBERG, Judge, presiding. Affirmed
in part, reversed in part.
Defendant, Compagnie Nationale Air France, a corporation doing business as Air France, appeals from the judgment of The Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, entered after trial without a jury, in the amount of $1,241.
In his complaint, plaintiff alleged that on January 24, 1963, he purchased air transportation on defendant's airline for two persons from Rome, Italy to Chicago, Illinois via Paris, France, through Elizabeth H. Larkin Travel Service, Inc., defendant's authorized agent, through whom it advertised and sold its services; that the tickets were purchased at a cost of $1,341.40, that on February 21, 1963, plaintiff cancelled the reservations, and according to the custom in the travel industry, and to defendant's express undertakings and representations, plaintiff became entitled to a refund of the amount paid; that he has repeatedly demanded repayment but defendant's agents have wilfully and vexatiously refused to pay him the sum due.
In its answer, defendant denied that the Elizabeth H. Larkin Travel Service, Inc. was authorized to act as its agent in any way, or to bind it by any contract, other than by issuing an official ticket, and denied that it ever advertised to the contrary; denied that plaintiff purchased air transportation as alleged in the complaint; denied that the Elizabeth H. Larkin Travel Service, Inc. was authorized to act for it in any way other than in the manner aforesaid; denied that any accommodations were cancelled; denied that plaintiff ever had reservations or tickets for the trip alleged; denied any express undertakings or representations that it would pay the sum referred to; denied that any custom exists in the travel industry which would entitle plaintiff to a refund, and denied that there was any vexatious refusal to pay the sums demanded.
In a separate and additional defense, defendant alleged that the Elizabeth H. Larkin Travel Service, Inc. was at all times acting as the agent of the plaintiff, and not as the agent of the defendant.
The plaintiff testified that in January of 1963, he requested Elizabeth Larkin, of the Elizabeth Larkin Travel Agency, to plan a trip to Europe for his wife and himself. He had engaged her in connection with prior trips, and was satisfied with her services. On January 24, 1963, at the first planning session, after reviewing the proposed plans, Mrs. Larkin requested that he pay the full cost of the planned trip in advance, because "accommodations and transportation would be in such demand at the very time of their trip, which was at Easter time, that only by putting cash on the line, so to speak, could he be assured of the desired reservations." When plaintiff questioned the necessity of the prepayment, Mrs. Larkin assured him that she was acting in his best interests by sending the money along with the request for transportation and reservations. Plaintiff issued his check to the Elizabeth H. Larkin Travel Service in the amount of $3,368.38, the check is in evidence, and the endorsement shows it to have been deposited to the account of the Elizabeth Larkin Travel Service.
Mrs. Larkin prepared, and gave plaintiff a detailed itinerary commencing with sailing to Gibraltar on the R.M.S. Mauretania on March 28, 1963, and terminating with the following: "April 17, 1963 Fly home to O'Hare via Air France."
In February, 1963, plaintiff became ill and was hospitalized for a period of time. It appeared that he would not have sufficiently recovered to make the trip as planned, so he advised Mrs. Larkin that it would be necessary to cancel the trip, and she promised him a refund.
Repeated telephone calls were made to the office of the travel agency resulting in promises that the refund check would be forthcoming, but no check was ever sent. In response to one telephone call, plaintiff was advised that the office of the agency was closed, that an administrator "had taken over" and plaintiff was then advised that Mrs. Larkin had filed a voluntary petition in bankruptcy.
On May 2, 1963, plaintiff wrote the defendant advising it of the occurrence, and requesting a refund in the amount of the cost of first-class air transportation from Rome to Paris, and from Paris to Chicago. Defendant refused to make payment, and this suit was filed.
Other than the flight from Paris to Chicago, the only air transportation included in the proposed itinerary was a flight from Rome to Paris on April 12, 1963. Plaintiff testified that Larkin scheduled his flight on Air France on both the flights from Rome to Paris on April 12 and Paris to Chicago on April 17; no airline is named in the itinerary for the flight on April 12th. Provision is made for transportation by private car to the Rome airport shortly after luncheon to board a flight for Paris leaving late p.m. and arriving in Paris approximately 5:00 o'clock p.m. The record shows that defendant's only scheduled flight on that day from Rome to Paris was scheduled to leave Rome at 8:35 p.m. and arrive in Paris at 10:30 p.m. Defendant's Chicago district manager testified that he had examined defendant's records and no tickets were issued in plaintiff's name during January, February or March 1963.
Exhibits, offered and admitted in evidence by stipulation of the parties, show that the Elizabeth H. Larkin Travel Service, Inc., hereafter referred to as Larkin, on June 12, 1961, entered into a passenger sales agency agreement with the International Air Transport Association, and it is stipulated that defendant had issued a "Certificate of Appointment" authorizing Larkin to represent it "in promoting and selling air transportation in accordance with and subject to all of the terms and conditions of the I.A.T.A. Sales Agency Agreement." The pertinent provisions of the I.A.T.A. agreement are (a) The agent shall request reservations only when he has had a request therefor, and if required by the carrier, a deposit has been paid, (b) the agent may represent himself as "Agent" or "Booking Agent" but not as "General Agent" and may not use the designations "Airline Ticket Office" or "Consolidated Ticket Office," (c) the agent is to display advertising material supplied by the carrier, (d) moneys collected for transportation sold are the property of the carrier and shall be so retained by the agent until satisfactory accounting is made therefor, (e) the carrier may, at its option, furnish agent with tickets and exchange vouchers, (f) prior to issuance of a ticket, agent is to secure confirmation from the carrier that a definite reservation has been made for a particular flight except that "open date" tickets may be issued if marked to indicate that no specific accommodation has been reserved.
By stipulation of the parties, there was admitted into evidence a copy of a proof of claim filed by plaintiff in the matter of the bankruptcy of Elizabeth H. Larkin Travel Service, Inc., stating that he had prepaid for travel fares and accommodations in the amount of $3,368.38, had received a refund from Cunard Steamship Company in the amount of $1,222.00, leaving a net balance of $2,146.38. This we consider to be of comparatively insignificant evidentiary value.
Plaintiff testified that all of his flights prior to the dates upon which the proposed flights were to be made, were first class. The judgment entered is in the amount of the published rate for first-class ...