Paoli v. Mason

• Decision Date: 14 February 1945
• Docket Number: Gen. No. 43201.
• Citation: 59 N.E.2d 499,325 Ill.App. 197
• Parties: PAOLI v. MASON.
• Court: United States Appellate Court of Illinois

325 Ill.App. 197

59 N.E.2d 499

PAOLI

v.MASON.

Gen. No. 43201.

Appellate Court of Illinois, First District, Third Division.

Feb. 14, 1945.

Appeal from Superior Court, Cook County; John C. Lewe, Judge.

Action by Hugo Paoli against Thomas Mason for damages allegedly sustained as result of claimed revocation of a liquor license by defendant as President and ex offico Liquor Control Commissioner of the Village of Northfield, and his refusal to reissue the license. Judgment for defendant, and plaintiff appeals.

Affirmed.Peter D. Giachini and Alphonse Cerza, both of Chicago, for appellant.

Charles C. Wooster, of Chicago (Thomas Mason and Howard B. Bryant, both of Chicago, of counsel), for appellee.

BURKE, Presiding Justice.

Hugo Paoli, a tavern keeper, filed a complaint in the Superior Court of Cook County to recover damages suffered as a result of the claimed revocation of a liquor license by Thomas Mason, president and ex officio liquor control commissioner of the Village of Northfield, and his refusal to reissue the license. Issue was joined. A trial before the court without a jury resulted in a finding and judgment for the defendant, and plaintiff appeals.

Since June 1, 1934, plaintiff operated a tavern on Happ Road in the Village of Northfield, hereinafter called the Northfield Tavern, and since October, 1938, he also operated a tavern outside the Village, herinafter called the Skokie Tavern. To the rear of the bar room in the Northfield Tavern is a hall once used as a dance hall, which has been converted into a warehouse, and which the plaintiff rents to a beer distributor named Gus Erickson. Between 11:30 and 12 p.m. on Saturday, June 28, 1941, defendant was in the Northfield Tavern. With him was Dr. R. B. Mundel, who lives in Evanston and who has an office in Winnetka. They were standing at one end of the bar. At the other end there were several young men. Present also were Jim Paoli, the manager of the tavern and a nephew of plaintiff, Walter Shleif, the bartender, Arthur George Bess, who worked for Erickson in the beer warehouse, Ed Petersen, who also worked for Erickson as a driver of a beer truck, Fred Petersen, who was then 19 years of age and a brother of Ed Petersen, and Joe Jingles, who was then 17 years of age. Ed Petersen purchased a glass of beer for Fred and this glass of beer was served to Fred. Defendant claims he saw the bartender sell a bottle of beer to Fred Petersen, a minor. The testimony of defendant as to this incident is corroborated by Dr. Mundel. Ed, Fred and the bartender testified that the bottle of beer was bought by Ed, who paid for it and then handed it to his brother, the minor, to take home. Fred Petersen and Joe Jingles walked out of the tavern toward an automobile which Fred had parked. Fred was carrying the bottle containing the quart of beer. Defendant followed the boys out of the tavern and asked Fred whether he purchased the beer in the tavern. Defendant stated that Fred replied: ‘Sure I did’. Defendant directed Fred to wait and removed the ignition key in Fred's car so that Fred could not move his car. Defendant then returned to the tavern and by telephone called Chief of Police Ed Clapper. When Clapper arrived, he and defendant talked with the boys. Arthur George Bess was standing about 10 feet away and heard the conversation. Then Clapper went into the tavern and asked Shlefit, the bartender, to come outside. Clapper testified that Shleif admitted selling a quart of beer to Fred Petersen. Chief of Police Clapper took the two boys to his office in the Village Hall. There Fred printed a statement that he purchased a quart of Rheingold Beer; that he paid 30 cents for the beer to the bartender; that the bartender gave him the beer and that the bartender did not ask him if he was a minor. Fred Petersen testified that he made the statement because he was threatened with being locked up for the night. At the time of the alleged sale of the bottle of beer and the serving of the glass of beer to Fred, plaintiff was not present in the tavern. No steps were taken to prosecute any of the parties concerned for alleged violation of any State law or of any Village ordinance. The next day, Sunday, June 29, 1941, defendant returned to the tavern at about 11 a.m. He asked the bartender and manager to sign a statement admitting the sale of the beer to Fred. They refused. Defendant took the license. In so doing he intended to revoke the license and the parties so treated it. On Monday, June 30, 1941, defendant advised the Illinois Liquor Control Commission by telephone that he had revoked the license. That day, or the next day, plaintiff and his attorney came to defendant's law office in Chicago. Defendant told plaintiff and his attorney that when he revoked the Northfield Tavern license he did not appreciate that the effect of his act was to revoke the Skokie Tavern license as well. He testified that he expressed concern of plaintiff losing his means of earning a livelihood and that he would be glad to help in working the matter out so that plaintiff would not lose his Skokie tavern license. A day or two later plaintiff and his attorney returned to defendant's Chicago law office. It was then that plaintiff signed the following letter, addressed to defendant and dated July 1, 1941:

‘On June 28, 1941, you charged me with violation of the Dram Shop Act, and revoked my Local Liquor License for my tavern on Happ Road, in the Village of Northfield. You later told me that you didn't want to jeopardize my state license for my tavern on Skokie Boulevard. You, therefore, reinstated my license in the Village of Northfield and permitted the same to expire in good standing upon my agreement to surrender all right to renew my Local Liquor License in the Village and my agreement not to operate a tavern in the Village without a new license.

‘This is to advise you that in consideration of the above and foregoing, I hereby and herenow renounce all right to a renewal of my Local Liquor License to run my tavern in the Village of Northfield. This letter is not to be construed as a denial of my right to apply in the future for a new license in case one should become available. I will not operate in the Village without having first procured a new license.’

Plaintiff's attorney testified that the letter of surrender was ready when he and his client arrived at defendant's office and that he had nothing to do with drafting it. Plaintiff testified that he signed the letter on advice of his attorney; that his attorney told him it was the thing to do; that the letter was prepared while he and his attorney were in defendant's office; that defendant's secretary was called in; that defendant and plaintiff's attorney dictated the letter; that plaintiff's attorney dictated part and defendant part; and that the secretary then typed it and that he signed it. After the letter was signed, defendant notified the State Liquor Control Commission that plaintiff's license had been restored, thus saving plaintiff's Skokie tavern license. Thereafter plaintiff demanded a license from defendant. The Village ordinance provided for the issuance of only five retail liquor tavern licenses. Nevertheless, there were six taverns in operation. Plaintiff's license was not the last one issued. There was evidence that at that time licenses were issued semiannually and that the new license period was to commence July 1, 1941. In the Fall of 1941 plaintiff filed an application for a license. On December 31, 1941, plaintiff notified defendant and the Illinois Liquor Control Commission that an appeal was being taken from defendant's alleged refusal to reissue plaintiff's license. Hearings were had from time to time on the appeal and on June 9, 1942, the Commission entered a finding that defendant had no just cause or reason to refuse to issue the license. From this order defendant appealed to the Circuit Court. On October 29, 1942, the Circuit Court sustained the order of the Illinois Liquor Control Commission. At the time of the events recounted, the Village ordinance regulating the sale of alcoholic liquor provided for an annual fee for a license to sell at retail of $500. An amendment adopted November 12, 1942, after the order affirming the action of the Illinois Liquor Control Commission, provided that the license period for retail dealers be the calendar year from January 1 to the succeeding December 31, and that the annual license fees be paid in full in advance. Following the order of the Circuit Court, plaintiff was granted a license and he reopened the tavern on November 10, 1942. He was required to pay $500 for a license to cover the period until December 31, 1942. On July 3, 1943 plaintiff filed the instant complaint. As a result of a pretrial conference, it was ordered that the testimony of the witnesses as shown in the transcript of the proceedings before the State Liquor Control Commission be considered by the court ‘the same as if the witnesses had testified herein’. In addition to reading the transcript, the trial judge heard the testimony of plaintiff as to his alleged damages. He claims that he lost $4,000 as a result of ‘the improper acts' of defendant in revoking his license and in refusing to reinstate it. Plaintiff's theory of the case is that defendant had no jurisdiction to revoke his liquor license; that defendant wilfully and maliciously revoked the license; that defendant, later, under duress, caused plaintiff to surrender his license; that still later he wilfully and maliciously refused to reissue the license for the ensuing license period; that defendant committed a trespass when he took the frame and license certificate from plaintiff's premises; that plaintiff is entitled to damages therefor; that in the alternative defendant in revoking and reissuing a liquor license acts as ministerial officer, and that he is liable to the plaintiff even though he did not act wilfully and maliciously; and that...