dissenting:
I respectfully dissent from the opinion of my colleagues. I cannot agree that defendant was an undisclosed agent for the tour sponsor, World Trek. Furthermore, an examination of the pleadings reveals that plaintiff did not seek recovery from defendant based upon a purported violation of defendant’s duties as a special agent of plaintiff and hence any reliance by the majority on such a theory is misplaced. Simpson v. Compagnie Nationals Air France, 42 Ill. 2d 496, 248 N.E.2d 117, appears to be the primary if not sole Illinois authority to consider principal-agent relationships involving travel agencies. As such, a careful examination of that decision is warranted.
In Simpson the plaintiff paid the Elizabeth H. Larkin Travel Service, Inc., a sum of money to purchase air fare on “Air France” and for certain other travel arrangements. No ticket was ever issued and Air France never received any of the funds plaintiff paid to Larkin. Due to poor health, it became apparent that plaintiff would be unable to embark on his European trip and he requested a refund from Larkin in advance of his scheduled departure. Shortly thereafter Larkin filed a voluntary petition in bankruptcy. After filing a claim in bankruptcy court, plaintiff commenced an action in the circuit court of Cook County against Air France to recover the fare for a contemplated return flight from Rome to Paris and then to Chicago. On appeal, plaintiff argued that Larkin was the agent of Air France and that Air France should be liable for the acts or defalcations of its agent. Air France claimed that Larkin was a broker or special agent for plaintiff rather than an agent of the airline. It was conceded that Larkin was an agent, but the issue was for whom? In discussing this issue, the court stated at 42 Ill. 2d 496, 498, 248 N.E.2d 117, 119:
“In our search for the principal we consider both the form and substance of the transaction in issue.
The characteristics differentiating between a ‘broker’ and an ‘agent’ are clearly set out in City of Chicago v. Barnett, 404 Ill. 136, 142. The court there said: ‘A broker is distinguished from an agent in that a broker sustains no fixed and permanent employment by, or relation to, any principal, but holds himself out for employment by the public generally, his employment in each instance being that of a special agent for a single object, (citation) whereas an agent sustains a fixed and permanent relation to the principal he represents and owes a permanent and continued allegiance.”
After evaluating and applying the various factors which determine the existence or nonexistence of an agency relationship, the supreme court held that Larkin was acting only in the capacity of a broker and that plaintiff was Larkin’s principal. In conclusion, the supreme court quoted from Mechem’s treatise on agency (Mechem, A Treatise On the Law of Agency 44 (2d ed. 1914):
“ ‘He [the broker] is primarily the agent of the person who first employs him, and he cannot, without the full and free consent of both, be, throughout the transaction, the agent of both parties. Without such consent, he can only act as the agent of the other party when the terms of the contract are fully agreed upon between the principals.’ ” (42 Ill. 2d 496, 500, 248 N.E.2d 117, 120.)
While I would agree with my colleagues that DePorter-Butterworth was a broker and hence the special agent for the plaintiff, the record does not support the conclusion that defendant was also the agent of World Trek. While the fact that defendant received its compensation in the form of a 10% commission from World Trek favors a conclusion that defendant was an agent of World Trek, such a fact alone is not controlling. (See Simpson v. Compagnie Nationale Air France, 42 Ill. 2d 496, 248 N.E.2d 117.) In Simpson, the supreme court noted that the receipt of a commission or fee by the travel bureau from the air carrier was one aspect of an agency relationship between the two. Nevertheless, the court found that the travel bureau was only the broker or special agent of the traveler and not the agent of the air carrier. Here, apart from the evidence of the 10% commission, the only other evidence relied upon by the majority to support the existence of an agency relationship between defendant and World Trek is a letter from defendant to Darius Transky of World Trek dated December 9. The letter generally relates first what happened to plaintiff when he tried to meet the tour in Cairo. The letter continues:
“We have never heard of such a thing. The least you could have done was contact me and I could have given them the message since it was through me he had booked this tour. Or at least had a message for him, or anyone else who was not informed of the change in plans where to meet your tour director.
Mr. Rosen is holding us liable for your actions and we in turn are holding you responsible for the inconvenience caused to our client. We request you send a full refund to us at once. We are not in the habit of selling a tour and have a person show up, after great expense, and find the itenerary changed and no one to inform him of that change. Please forward your check to me by return mail.”
While this letter may “hint” of an agency relationship between defendant and World Trek as is suggested by the majority, the letter as a whole conveys the impression that defendant was and considered itself to be solely the agent of the plaintiff. The majority chooses to ignore other more substantial facts belying any agency relationship between defendant and World Trek.
Prior to the time that plaintiff brought a World Trek brochure to defendant, defendant had no contact with World Trek. Plaintiff did not obtain the brochure from the defendant, but acquired it from a friend. Defendant never solicited or promoted the World Trek tour, but on the contrary, defendant’s actions in arranging the World Trek tour for plaintiff were undertaken solely upon plaintiff’s request. Apart from this isolated transaction, it does not appear that defendant had any other contact with World Trek and certainly had no permanent association with it. In light of the foregoing, I believe that as a matter of law, defendant was not the agent of World Trek, but was only the broker or special agent for plaintiff.
In holding defendant an undisclosed agent of World Trek, the majority refers to an annotation in Annot., 53 A.L.R.3d 1310 (1973). Without examining in detail each of the cases in the annotation, suffice it to state they generally involve a relationship between a travel agent and tour sponsor which could be best categorized as a joint venture where each party was the agent of the other, a situation distinct from the present facts.
The Unger and McQuade decisions cited by the majority both arose from a traveler first booking a cruise on the S.S. Rivieria, owned and operated by the Caribbean Cruise Lines, Inc., and the traveler then being denied passage when the owner of the vessel became insolvent and canceled the cruise. Unger involved an appeal from a summary judgment against the defendant travel bureau. The appellate court held that if the plaintiff knew that Caribbean Cruise Lines, Inc., operated the S.S. Rivieria then he could not recover from the defendant on the ground of an undisclosed principal. The opinion in McQuade assumed that defendant was the agent for the cruise line without discussing the applicable principles of agency and the sole issue decided was whether the defendant sufficiently disclosed the identity of its principal by merely revealing the name of the cruise ship. Without any revelation as to why or how the defendant was the agent of the steamship company, McQuade offers little support to the majority’s decision. Furthermore, the reasoning and results reached in Unger and McQuade are inconsistent with the extensive reasoning of our own supreme court in Simpson v. Compagnie Rationale Air France, 42 Ill. 2d 496, 248 N.E.2d 117.
Apart from any undisclosed agency theory, in upholding the defendant’s liability the majority also rely upon an alleged breach by defendant of its duties as an agent to its principal, Rosen. While the defendant’s failure to notify World Trek in advance of Rosen’s European itinerary or inquiring of World Trek of any changes in the tour may be a breach of its duties as an agent, plaintiff’s complaint does not even remotely suggest such a theory of recovery. I do not consider it appropriate for this court to uphold defendant’s liability based upon a theory of recovery which was not advanced or even suggested in the plaintiff’s complaint. We are not involved here with an area of law which has been extensively reported and therefore the defendant’s duties as a special agent in this particular factual setting are not well defined. Without the appropriate allegations in the complaint and the argument in the trial court which necessarily follows, it is difficult if not impossible to accurately assess the nature and extent of defendant’s duties to plaintiff and whether those duties have been violated.
As stated previously, I believe the facts do not support liability of defendant based upon principles of an undisclosed agency relationship. In light of the failure of plaintiff to properly plead for recovery based upon defendant’s negligence in discharging its duties as a special agent, I believe the judgment should be reversed.