Fletcher v. Havre De Grace Fireworks Co.

Horney, J., delivered both opinions of the Court. The primary question posed by this appeal is whether the declaration sounding in tort against a corporation and its officers and directors contained such statement of facts as was necessary to constitute a cause of action against the officers and directors as well as the corporation. On February 9, 1960, the plaintiff, Minnie L. Fletcher, owned and occupied a parcel of residential property on Chapel Road in suburban Flavre de Grace. At the same time the defendants, Annette J. Fabrizio and James A. Fabrizio, her husband, now deceased, owned a parcel of commercial property directly across the road from the property of the plaintiff.

This property was occupied by the Havre de Grace Fireworks Company, Inc., and the several buildings located thereon were used by the corporation as a plant in which to manufacture and store fireworks and other explosives. ¹⁹⁹ On the day in question, a series of explosions (and the fires resulting therefrom) on the premises occupied by the corporation completely destroyed the fireworks plant and killed or burned to death James A. Fabrizio, and the explosions (not the fires) injured the plaintiff and damaged her home and other properties kept therein. This tort action was brought by the plaintiff to recover compensation for her personal injuries and property damages. In addition to the corporation, Annette J. Fabrizio, as executrix of the estate of James A. Fabrizio, who was president and general manager of the corporation at the time of the explosions, and Annette J. Fabrizio, individually, and Mary Lang, who were officers and/or directors of the corporation at the time, were also named as parties defendant. The four-count declaration sought relief on four different theories: (i) based on trespass quare clausum fregit for damages to the property of the plaintiff as the result of the explosions ; (ii) for damages and injuries to the person and property of the plaintiff as the result of negligence; (iii) for damages and injuries to person and property as the result of extra-hazardous activities carried on at the fireworks plant; and (iv) for damages and injuries to person and property as the result of creating or maintaining a nuisance.

A demurrer was filed by the corporation to the trespass q.c.f. and extra-hazardous activities counts, but it was overruled and no appeal was taken from the ruling of the lower court by the corporate defendant. Demurrers were also interposed by the individual defendants to all four counts and these were sustained by the lower court on the basis that the allegations in regard to the conduct of the officers and/or directors were “too general to charge them with liability.” But, these same demurrers were in effect overruled insofar as it was claimed that there was no action for a common law nuisance on the facts alleged in the fourth count and insofar as it was claimed that counts three and four were duplicitous in that each attempted to allege two distinct and separate causes of action, and no appeal was taken by the individual defendants to the rulings adverse to them. However, the plaintiff appealed from the judgment for costs entered by the court ²⁰⁰ with respect to the rulings adverse to her. Hence, we are concerned here only with the rulings adverse to the plaintiff.

On this appeal the plaintiff has limited the questions presented to whether the allegations [i] (in the trespass q.c.f. count) to the effect that the officers and directors had md exercised complete direction and control over all phases of the fireworks manufactory, and [ii] (in the other three counts) to the effect that the officers and directors, knowing of or responsible for certain negligent acts and conditions, extra-hazardous activities and nuisances done, conducted or existing in a fireworks manufactory over which they had md exercised complete direction and control, had failed to exercise reasonable care and diligence to avoid or correct the same and directly permitted the same to continue, were sufficient initial pleadings of the responsibility of such officers and directors for the trespass caused by the explosions and the damages caused by such negligent acts and conditions, extra-hazardous activities and nuisances. While Maryland Rule 301 c 1 stipulates that a clear statement of the facts necessary to constitute a cause of action shall be sufficient without reference to mere form, a plaintiff is still required to state the subject matter of a claim in the declaration with such reasonable accuracy as will show what is at issue between the parties, so that, among other things, the defendant may be apprised of the nature of the complaint he is required to answer and defend. Fisher, Essentials of Marylmd Pleading, p. 22. This the plaintiff has not done in this case.

In order to show that the officers and directors of the fireworks company are personally liable for the tort committed by the corporation, or, in other words, state a cause of action against the officer-director defendants that is not demurrable, ²⁰¹ we think section c requires the plaintiff to clearly state such facts as will charge the individual defendants with having either specifically directed, or actively participated or cooperated in, a particular act of commission or omission that wrongfully triggered the series of explosions. Levi v. Schwarts, 201 Md. 575 , 95 A. 2d 322 (1953). See also Lobato v. Pay Less Drug Stores, 261 F. 2d 406 (C. A. 10 1958), where the Court, citing the Levi case, points out (at p. 409) that “[specific direction or sanction of, or active participation or cooperation in, a positively wrongful act of commission or omission which operates to the injury or prejudice of the complaining party is necessary to generate individual liability in damages of an officer or agent of a corporation for the tort of the corporation.” To the same effect, see also 3 Fletcher, Corporations (Perm. Ed.), § 1137; 13 Am.

Jur., Corporations, § 1087; 6 M. L. E., Corporations, § 232. It is manifest, we think, that the allegation in the trespass q.c.f. count that the officer-director defendants had and exercised “complete direction and control over all phases of the conduct of the business of the defendant company,” and the more comprehensive allegation of similar import in the negligence, extra-hazardous and nuisance counts, fall far short of alleging that the individual defendants had personally directed or actively participated or cooperated in the tort committed by the corporation. Cf. Callahan v. Clemens, 184 Md. 520 , 41 A. 2d 473 (1945).

We hold that the sustaining of the demurrers of the individual defendants — insofar as they were adverse to the plaintiff — was proper. Judgment affirmed; appellant to pay the costs. Hornby, J., delivered the opinion of the Court on modification. After this case (Fletcher v. Havre de Grace Fireworks Co., 229 Md. 196, 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 ²⁰² 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 Building 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 de ²⁰³ cided 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 (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