Fletcher v. Havre De Grace Fireworks Co.

• Decision Date: 05 July 1962
• Docket Number: No. 153,153
• Parties: Minnie L. FLETCHER v. HAVRE DE GRACE FIREWORKS COMPANY, Inc., and Annette J. Fabrizio, Executrix, et al.
• Court: Maryland Court of Appeals

Page 196

229 Md. 196

183 A.2d 386

Minnie L. FLETCHER v. HAVRE DE GRACE FIREWORKS COMPANY, Inc., and Annette J Fabrizio, Executrix, et al.

No. 153.

Court of Appeals of Maryland.

July 5, 1962.

George Edward Thomsen, Baltimore, for appellant.

Norman P. Ramsey, Baltimore, for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HORNEY, Judge.

After this case (Fletcher v. Havre De Grace Fireworks Co., Mc., 177 A.2d 908) had been decided, but before the mandate was issued, the appellant, alleging that she had been apprised of facts that could enable her to state a cause of action against the individual defendants, petitioned this Court to modify its opinion by striking out the affirmance of the judgment for costs and in lieu thereof remand the case under Maryland Rule 871 a to permit an amendment of the declaration and for further proceedings. The motion was heard by the entire Court.

The record shows that the case came to this Court under somewhat unusual circumstances. In the first place, after the demurrers as to the individual defendants had been sustained, the parties entered into a stipulation and the lower court ordered that its prior orders sustaining the demurrers in eleven other cases against the same individual defendants should be suspended and held to be of no effect pending a decision by this Court on appeal in this test case to determine whether the declaration stated a good cause of action. But it was further stipulated that the mandate issued in this case should apply to the other eleven cases as if an appeal had been taken in each of them. Apparently, however, no consideration was ever given to the amendability of the declaration in the lower court. Whether an amendment should be allowed is, of course, a matter within the sound discretion of the trial court. Standard American Homes v. Pasadena Co., 218 Md. 619, 147 A.2d 729 (1959). But as indicated the appellant did not seek permission to amend in the lower court, and the court made no order with respect to amendment in its order sustaining the demurrers. Moreover, at the argument in this Court on the demurrers, the appellant indicated that she was without knowledge at that time of any additional facts.

Secondly, after the appeal was entered and the case set down for argument on the demurrers, all of the parties consented to the entry of a judgment for costs by the lower court subject to the approval of this Court. And on the day of the argument we permitted the judgment so entered nunc pro tunc by the lower court to be made a part of the record.

In addition to being advised at the hearing of the motion to modify the mandate as to what additional facts had been ascertained, we were further informed that the other persons having claims arising out of the explosion at the fireworks plant have deliberately delayed filing suit until this Court had decided whether the facts alleged constituted a good cause of action. Thus (assuming the appellant is now able to state a case against the individual defendants) it is apparent that if she is not permitted to amend, then she (and the other plaintiffs tied in with her) will be forever barred from asserting a claim for the injuries she (and they) sustained as a result of the explosion, while, on the other hand (again assuming the newly discovered facts are such as would enable the statement of a good cause of action), the other persons who have not yet sued could now sue and possibly recover damages for the injuries they sustained. This would seem to be unfair. Under the provisions of Rule 871 a (that if the 'purposes of justice will be advanced by permitting further proceedings' through amendment of the pleadings or otherwise), this Court may remand without affirmance or reversal. See Stoewer v. Porcelain Etc. Mfg. Co., 199 Md. 146, 150, 85 A.2d 911, 913 (1952), where it was said that General Equity Rule 17 (from which the provisions of Rule 871 a were derived) 'indicates that amendments should be freely allowed to serve the ends of justice.'

The motion to modify is essentially a motion to amend, which, had the case not been appealed, could have been timely filed in the lower court, And, since the lower court did not consider whether amendment of the declaration should be allowed, we see no reason why the appellant, under the peculiar circumstances of this case, should not be afforded an opportunity to petition the lower court now for permission to amend the declaration so that the lower court, in the exercise of its discretion, may decide whether amendment should be allowed. Cf. Glenn v. Clark, 53 Md. 580 (1880), in which it was held that in a case where new facts have been discovered during the progress of the case and laches cannot be imputed to a party, it is within the sound discretion of the trial court to decide whether leave should be granted to amend the pleadings. See also Landay v. Cohn, 220 Md. 24, 150 A.2d 739 (1959).

We think the mandate should be so modified as to provide for a remand of the case, without affirmance or reversal, for further proceedings, and we shall so order.

Case remanded, without affirmance or reversal, for further proceedings; Appellant to pay the costs.

BRUNE, Chief Judge (dissenting).

The decision of the majority changes the prior disposition of this case from an affirmance of a ruling unanimously held to have been correct (by the five members of this Court who participated in the original hearing) to a remand without affirmance or reversal to permit application to be made for leave to amend on the basis of newly discovered evidence.

Attempts to invoke Rule 871 a or the predecessor statute from which it was derived (Acts of 1832, Ch. 302, § 6) ¹ on the basis of new evidence after a case has been decided by this Court are extremely rare, so far as disclosed by my research which has been more time-consuming than productive. I can hardly believe that the dearth of such cases is accidental. Rather, it seems to be a recognition for a hundred and thirty years that the former statute or the present Rule which supplanted it applied only to a case where facts calling for its invocation were apparent from the record before this Court. Cases are almost innumerable where such a situation has existed and this Court, either of its own motion or at the instance of a party, has remanded to permit amendments to bring in additional parties, to conform the allegations of the bill to the proof adduced, or for taking additional evidence to determine some question. None of these cases is in point here and I shall therefore not cite any of them, except to comment that Landay v. Cohn, 220 Md. 24, 150 A.2d 739, cited by the majority, is a case in which the likelihood that the appellant could state a good cause of action was apparent from the original record before us. Several other cases cited by the majority deal with the freedom with which amendments may be allowed in the trial courts. Neither those cases nor Rule 320 (applicable to the trial courts) seem relevant here.

The above statute was construed by this Court in 1857 and again in 1902 as requiring that the cause for invoking it appear by the record. General Insurance Co. v. U. S. Insurance Co., 10 Md. 517, 528; Smith v. Hooper, on motion for remand, 95 Md. 16, 32, at 36, 51 A. 844, 54 A. 95, 96. It was stated in General Insurance, and this passage was quoted in Smith:

'But the record must indicate that the ends of justice will be promoted by such further proceedings, in order to authorize this court to remand a cause.' (Italics supplied.)

Gittings v. Baltimore City, on motion for reargument or in the alternative for remand, 95...