Heuer v. Crescent River Port Pilots' Ass'n

• Decision Date: 02 December 1963
• Docket Number: No. 1271,1271
• Citation: 158 So.2d 221
• Parties: William L. HEUER, Jr. v. CRESCENT RIVER PORT PILOTS' ASSOCIATION.
• Court: Court of Appeal of Louisiana — District of US

Page 221

158 So.2d 221

William L. HEUER, Jr. v. CRESCENT RIVER PORT PILOTS' ASSOCIATION.

No. 1271.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 2, 1963.

Rehearing Denied Dec. 18, 1963.

Writ Refused Jan. 20, 1964.

Montgomery, Barnett, Brown & Read, Henry J. Read, New Orleans, for defendant-appellee.

Before YARRUT, SAMUEL and TURNER, JJ.

YARRUT, Judge.

Plaintiff takes this appeal from a judgment of the district court refusing to reinstate him as a member of Defendant-Association. Defendant-Association is a private corporation created by authority of the Louisiana Legislature under LSA-R.S. 34:995, and recognized as such in the case of Kotch v. Board of River Port Pilot Com'rs for Port of New Orleans, 209 La. 737, 25 So.2d 527. Defendant-Association has adopted a charter and by-laws, the pertinent provisions of which, applicable here, are as follows:

'ARTICLE XI.

'The Board of Directors shall have the following powers:

'(a) To make such expenditures and to sell and purchase property for the Association not exceeding One Thousand ($1,000.00) Dollars in any one instance; provided that by a petition addressed to the Board of Directors and by a majority of the members, the Board of Directors shall have the power in its discretion to make the expenditures and to sell and purchase property for the Association in such amounts as may be authorized by the petition or necessary for compliance with the petition; and

'(b) To make such by-laws, rules and regulations for the government and discipline of the members of the Association, and for the conduct and management of its business, sanctioned by such fines, pains and penalties as in their judgment shall be deemed wise, proper and necessary, and which shall not be inconsistent with law or the provisions of this Charter.

'A majority of the Board of Directors shall constitute a quorum to act for the Association in the particulars set forth above and in all other matters in this Charter specified, except where the unanimous censent of all of the Directors is required. Notice shall be given to each director of the date, time and place of each meeting of the Board sufficiently in advance to afford reasonable opportunity for all members to be present.'

Under the above charter provisions the Board of Directors adopted Rule 24 of its by-laws, reading:

'Sec. 1. It shall be the duty of the Board of Directors to enforce all rules and regulations and the Board of Directors shall have supervision over the conduct of the members of this Association, and whenever any member shall be found guilty of conduct unbecoming a pilot, or shall do any act or thing which tends to bring discredit upon the Associations, or be prejudicial to the best interest of the Association, the Board of Directors shall have the power to try such offending pilot, after giving him notice in writing of the acts complained against, and giving him a reasonable time to appear for trial before the Board of Directors.

'The Board of Directors shall have the power, when any member is found guilty of conduct unbecoming a pilot, to assess a fine of not less than one day's pay and not more than thirty days' pay, or, the Board may suspend the offending member for not less than one month, nor more than twelve months, and the Board shall have the power in addition, to assess a fine equal to the costs of the trial.'

Plaintiff failed to account for some $237,476.51 of the Defendant-Association's funds during his 43-month tenure as President, of which amount $127,550.00 was represented by checks drawn to his own order and signed by him. He persisted in his refusal to explain these expenditures, notwithstanding he was given the official audit by the Defendant-Association's certified public accountants.

Plaintiff, under the authority of the charter and by-laws, was then given notice to appear before the Board of Directors, on a date and hour named, to answer to the following charges:

'1. You have while serving as President of the Association from October 22, 1958 to September 21, 1962, expended the funds of the Association without proper authority.

'2. You have failed to comply with the request of the Association's Board of Directors for an accounting of the unsupported expenditures made by you during the period October 22, 1958 to September 21, 1962 as reflected in the Audit of F. W. LaFrentz & Co., Certified Public Accountants, dated November 17, 1962, copy of which has been furnished to you heretofore.'

Upon receiving this letter Plaintiff asked Defendant's Board to summon certain witnesses. The Board stated it had no authority to summon witnesses, but would be very glad to permit any witnesses Plaintiff brought to testify in his behalf under oath. On the day and hour fixed for the hearing Plaintiff announced that his witnesses would not appear and testify because they...