{ "id": 3618786, "name": "BONNIE McCARTHY et al., Plaintiffs-Appellants, v. CAREFREE VACATIONS, INC., et al., Defendants-Appellees", "name_abbreviation": "McCarthy v. Carefree Vacations, Inc.", "decision_date": "1988-06-21", "docket_number": "Nos. 2-87-0528, 2-87-0632 cons.", "first_page": "1050", "last_page": "1056", "citations": [ { "type": "official", "cite": "171 Ill. App. 3d 1050" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "101 Ill. 2d 577", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "465 N.E.2d 127", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 1057", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3427820 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "1062" }, { "page": "1062" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/1057-01" ] }, { "cite": "516 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3546630 ], "pin_cites": [ { "page": "907" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0901-01" ] }, { "cite": "71 Ill. 2d 615", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "379 N.E.2d 407", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 762", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621074 ], "year": 1978, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0762-01" ] }, { "cite": "248 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "42 Ill. 2d 496", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2846972 ], "weight": 4, "pin_cites": [ { "page": "498" }, { "page": "500" }, { "page": "500" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0496-01" ] }, { "cite": "516 N.E.2d 977", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547441 ], "pin_cites": [ { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0262-01" ] }, { "cite": "490 N.E.2d 20", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 195", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495662 ], "year": 1987, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0195-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "345 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 650, "char_count": 12832, "ocr_confidence": 0.774, "pagerank": { "raw": 4.5046715916883656e-08, "percentile": 0.28225159072980704 }, "sha256": "27a04e361e6ee7be6c74e2d3818fc7ce9496614f53d6c8610ca0202a02445033", "simhash": "1:d72b9d94d375bdba", "word_count": 2049 }, "last_updated": "2023-07-14T21:35:27.168167+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BONNIE McCARTHY et al., Plaintiffs-Appellants, v. CAREFREE VACATIONS, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE NASH\ndelivered the opinion of the court:\nPlaintiffs, Bonnie and John McCarthy, appeal from a directed verdict entered in favor of defendant Carefree Vacations, Inc., at the close of plaintiffs\u2019 case, contending that sufficient evidence was offered relating to the factual issue of whether Carefree was plaintiffs\u2019 agent and owed them a fiduciary duty of care and honesty to submit the case to the jury for determination.\nThis action arose after plaintiffs purchased a Carefree tour package for a trip to Jamaica through defendant Discount World Travel for $1,318; plaintiffs went on the tour, but were not permitted to return on the plane chartered by Carefree when Discount failed to remit plaintiffs\u2019 payment to Carefree. The case went to jury trial against this defendant on counts V and VI of plaintiffs\u2019 second amended complaint. In count V, plaintiffs apparently sought recovery of damages on a theory that Carefree breached a fiduciary duty to them as plaintiffs\u2019 agent, and in count VI they sought damages against Carefree for alleged violation of the Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1985, ch. 12V-k, par. 261 et seq.). In directing a verdict for defendant Carefree, the trial court stated that it found no evidence to support a fiduciary relationship with Carefree as to counts V and VI of the complaint.\nDefendant Carefree has not filed a responsive brief in this court to assist our analysis of the claimed error. While a reviewing court is not required in such cases to serve as an advocate for the appellee, or search the record for the purpose of sustaining the judgment of the trial court, it must decide the merits of an appeal where the record is simple and the issues are capable of easy resolution. In other cases, we may reverse the trial court if \u201cthe appellant\u2019s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record.\u201d (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.) The 507-page record of this case is not simple and is supplemented with 451 pages of reports of proceedings and 32 exhibits. The legal and factual issues relating to the relationships between a travel agent, such as Discount; a company which arranges tours, such as defendant Carefree; and, consumers who deal with both to purchase a vacation trip has not been extensively litigated in Illinois. In addition, in this case plaintiffs\u2019 second amended complaint, upon which these issues were tried and a directed verdict for defendant entered, is not found in the record and was not before the trial court when it considered defendants\u2019 motion for a directed verdict at the close of plaintiffs\u2019 evidence. At that time, the judge noted that the clerk had been unable to find that complaint in the file. Counsel for plaintiffs stated she thought it should be there, and counsel for defendant suggested the complaint was similar to that in a consolidated case brought by other plaintiffs against this defendant and tried together, to which the trial court may have referred. The consolidated case, however, has not been appealed, and we do not have its complaint for reference. We note that defendant answered and did not seek dismissal of plaintiffs\u2019 second amended complaint for failure to state a cause of action, and we will presume that the complaint does state a proper cause of action. Nevertheless, the inherent difficulties and uncertainties which exist where a trial court passes on a motion for directed verdict in absence of the complaint, and review of its decision, are apparent.\nWe consider this appeal under the Talandis standard that if appellant\u2019s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed.\nDirected verdicts should be granted only when the evidence, viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) It is for the trier of fact to determine the facts and inferences to be drawn therefrom. (Mesick v. Johnson (1986), 141 Ill. App. 3d 195, 205, 490 N.E.2d 20.) Whether an agency relationship exists is a question of fact for the jury unless the relationship is so clear as to be indisputable. Perkinson v. Manion (1987), 163 Ill. App. 3d 262, 266, 516 N.E.2d 977.\nPlaintiffs contend in their brief that the essential fact issue is whether Carefree was their agent, or travel agent, so as to raise a fiduciary duty to them, and whether Discount acted as agent for Carefree in receiving plaintiffs\u2019 payment for the tour and in securing plaintiffs\u2019 signature on a Carefree tour contract. Plaintiffs argue that evidence was presented showing that Discount was the agent of both Carefree and plaintiffs in the transaction and, as such, acted as Carefree\u2019s agent in the sale of the aborted tour to plaintiffs.\nEvidence was presented in trial that plaintiff John McCarthy had seen advertisements for Carefree Vacations, Inc., tours in a newspaper in which Discount was listed as an authorized Carefree travel agent. Plaintiffs obtained several vacation trip pamphlets from Discount, including Carefree\u2019s brochure, and they chose, and paid Discount for, the Jamaican tour offered by Carefree. Mrs. McCarthy testified that she believed she had signed Carefree\u2019s tour contract at Discount\u2019s office, but she had not been given a copy of it.\nOn March 24, 1984, the plaintiffs arrived at O\u2019Hare Airport, where a Carefree representative gave them a packet which contained round trip airline tickets to Jamaica, vouchers for ground transportation and hotel, and a letter from Carefree thanking plaintiffs for \u201cselecting Carefree Vacations, Inc. as your tour company.\u201d The letter was on defendant\u2019s stationery, bore the insignia of American Society of Travel Agents (ASTA), and declared defendant was a member of ASTA. Plaintiffs\u2019 were not informed at this time that Carefree had not received payment for their trip from Discount. At the conclusion of their vacation, plaintiffs returned to the Montego Bay Airport in Jamaica, where Carefree\u2019s representatives informed them that Discount had not paid defendant for their trip and that they could not board the chartered airplane unless they paid defendant, in cash or by travelers checks, for the trip; a credit card was not acceptable. Plaintiffs returned to Chicago on another airline.\nPlaintiffs called Terry O\u2019Connor, vice-president of Carefree Vacations, Inc., as an adverse witness, and he testified that defendant packages tours, arranging ground transportation and hotel, and chartering planes. All documentation to their clients is issued by Carefree. O\u2019Connor stated that Carefree advertises its tours in the newspapers and acknowledged that plaintiffs\u2019 exhibit, showing Carefree\u2019s advertisement listing authorized CVI travel agents, was their ad and that Discount was so listed thereon. He testified that defendant had been having difficulty obtaining payment from Discount for trips it booked, and required Discount to sign a guarantee policy before Carefree would continue their business relationship. O\u2019Connor identified Carefree\u2019s reservation form which indicated that Discount had obtained a Carefree tour contract from plaintiffs. Under questioning by defendants\u2019 and plaintiffs\u2019 counsel, O\u2019Connor read the following provisions from a representative, unsigned tour contract:\n\u201cCarefree Vacations, Inc., hereinafter referred to as CVI, 620 West Belmont, Chicago, Illinois, the charter operator, is the principal and is responsible to the participants for all services and accommodations offered in connection with this tour.\n* * *\nAny agent submitting a payment for a tour without providing CVI with a signed tour contract is responsible to the tour participant for the terms of this contract.\u201d\nHe testified that plaintiffs were participants within the meaning of the above provision. The unsigned tour contract was marked for identification, but was not admitted in evidence when defendant objected.\nTimothy O\u2019Connor, a Carefree employee, also called as an adverse witness, testified that defendant sells package tours through travel agents using newspaper advertisements to reach the general public, and that the advertisements contain names of travel agents who cooperate in the advertising with defendant. He testified that the general public could purchase defendants tour packages only through travel agents, who received a commission for selling a Carefree tour. O\u2019Con-nor stated that when a travel agent requests a tour, Carefree would arrange for hotels, and air and ground transportation, and would issue tickets in the customer\u2019s name. Carefree requires the travel agent to obtain a tour contract from the customer, and O\u2019Connor testified that Carefree\u2019s reservation form indicated that Discount had obtained a Carefree tour contract from plaintiffs.\nPlaintiffs also called Leo Sharp, a Carefree partner, as an adverse witness, who testified that defendant had a continuous relationship with Discount for several months prior to plaintiffs\u2019 dealings with Discount. He stated that defendant advertises its tours in the newspaper listing agents customers can contact.\nWe conclude on these facts that the trial court erred in directing a verdict for defendant at the close of plaintiffs\u2019 case.\nIt was not disputed that Discount was acting as a broker/special agent in this transaction, but the question remains, for whom did it act? A broker is, in a sense, an agent but unlike an agent a broker has no fixed and permanent relation to any principal, holding himself out for employment by the public generally, his employment being that of a special agent for a single object. The relationship between a principal and agent is fixed and permanent, and the agent owes his principal a permanent and continued allegiance. (Simpson v. Compagnie Nationale Air France (1969), 42 Ill. 2d 496, 498, 248 N.E.2d 117.) In the present case, it is clear that plaintiffs employed Discount as their special agent for the purpose of arranging a vacation tour. (Cf. Rosen v. DePorter-Butterworth Tours, Inc. (1978), 62 Ill. App. 3d 762, 765, 379 N.E.2d 407, appeal denied (1978), 71 Ill. 2d 615.) Discount undoubtedly rendered some services only to plaintiffs, such as advising them on other vacation packages available, but there is evidence under which Discount could also be viewed as an agent of Carefree. (See Simpson v. Compagnie Nationale Air France (1969), 42 Ill. 2d 496, 500, 248 N.E.2d 117.) Although a broker is generally the agent of the person who initially employs him, he can, with knowledge and consent, be the agent of both parties. (Simpson, 42 Ill. 2d at 500.) Here, it is clear that both Carefree and plaintiffs were aware of, and consented to, the relationships between Discount and each of them. We conclude that, when viewed in the light most favorable to plaintiffs, a jury could find from the evidence that Discount was acting as Carefree\u2019s agent in the transaction with plaintiffs.\nIllinois also recognizes both apparent agency (see Simpson v. Compagnie Nationale Air France (1969), 42 Ill. 2d 496, 500, 248 N.E.2d 117; Bank of Waukegan v. Epilepsy Foundation of America (1987), 163 Ill. App. 3d 901, 907, 516 N.E.2d 1337) and agency by estoppel (Salisbury v. Chapman Realty (1984), 124 Ill. App. 3d 1057, 1062, 465 N.E.2d 127, appeal denied (1984), 101 Ill. 2d 577). Both require one party to hold out another as its agent. (124 Ill. App. 3d at 1062.) Here, there is evidence that Carefree placed vacation package advertisements in the newspaper which directed the reader to \u201cSee Your Authorized CVI Travel Agent Listed Below,\u201d and numerous travel agencies were listed in the ad, including Discount World Travel. There was testimony that defendant does not sell its vacation packages directly to the public, but only through its agents, and such evidence supports an inference that Discount was Carefree\u2019s agent for the purpose of executing contracts for the sale of defendant\u2019s tour packages and collection of the cost thereof for Carefree.\nAs we find that plaintiffs\u2019 brief demonstrates that the trial court erred in directing a verdict for defendant, and is supported by the record, the judgment of the circuit court will be reversed and the cause remanded for a new trial.\nReversed and remanded.\nINGLIS and REINHARD, JJ., concur.", "type": "majority", "author": "JUSTICE NASH" } ], "attorneys": [ "Maureen H. Flaherty, of Lehrer, Flaherty & Canavan, of Wheaton, for appellants.", "No brief filed for appellees." ], "corrections": "", "head_matter": "BONNIE McCARTHY et al., Plaintiffs-Appellants, v. CAREFREE VACATIONS, INC., et al., Defendants-Appellees.\nSecond District\nNos. 2\u201487\u20140528, 2\u201487\u20140632 cons.\nOpinion filed June 21, 1988.\nMaureen H. Flaherty, of Lehrer, Flaherty & Canavan, of Wheaton, for appellants.\nNo brief filed for appellees." }, "file_name": "1050-01", "first_page_order": 1072, "last_page_order": 1078 }