King v. American Powder Co.

• Decision Date: 29 April 1935
• Citation: 290 Mass. 464,195 N.E. 785
• Parties: KIND v. AMERICAN POWDER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 464

195 N.E. 785

KIND v. AMERICAN POWDER CO.

Supreme Judicial Court of Massachusetts, Middlesex.

April 29, 1935

Report from Superior Court, Middlesex County; Mac Leod, Judge.

Action of contract by Thomas E. King against the American Powder Company, where there was a verdict for plaintiff in the sum of $18,491.90, and the judge reported the case to the Supreme Court on defendant's exceptions.

Judgment ordered to be entered for defendant.

C. C. Steadman, of Boston, for plaintiff.

J. M Raymond, of Boston, for defendant.

PLERCE, Justice.

This is an action of contract which comes before this court on a report of the Superior Court of the defendant's exceptions.

On June 14, 1916, the plaintiff, while in the employ of the American Powder Mills, was severely burned ‘ under such circumstances that there was liability on behalf of the American Powder Mills for the injury.’ While in the hospital he was interviewed by the president and the superintendent of the American Powder Mills, who at this time made an oral contract with him whereby, in substance, the plaintiff agreed not to sue said mills on account of the injuries received, in consideration of the mills' agreement to give him ‘ six days' pay a week plus all expenses that may incur through this accident, for life whether you are able to work or not, and in case of your death if you don't come out of this we guarantee to take care of your family.’ The plaintiff testified as follows: After the talk with the president and the superintendent ‘ I did not expect that I could sit still and not work the rest of my life. I expected as a result of that talk that I was to work when able at the American Powder Mills at all times when they had anything for me to do except when I had to be away for treatments on account of the injury. In other words, when they said they were going to give me six days' pay a week I understood that unless I had to go to the hospital or see a doctor on account of my hands or they were in such pain that I couldn't work I was going to perform the work which they had for me to do at the plant, as far as I was able.’

The plaintiff thereafter worked for the mills when he was able until 1926 when the American Powder Mills sold its business but not all its assets to the Cellulose Products, Inc. ‘ subject to all existing liabilities of American Powder Mills' as listed in a schedule attached to the bill of sale, which list did not in terms refer to any liability to the plaintiff. It appears in the record that the purchasers were an entirely new group formed to purchase the properties of the American Powder Mills and turn them into a cellulose plant, although some of the powder business was continued. On March 31, 1928, the name of Cellulose products Inc. was changed to American Powder Company. On October 8, 1929, pursuant to an agreement dated August 14, 1929, the American Powder Company sold all its assets to American Cyanamid Company. This sale was to a new group, the American Cyanamid Company being a large company with chemical operations all over the country. The purchaser agreed to pay all debts of the American Powder Company disclosed in the agreement of August 14, 1929, Exhibit 2. This agreement scheduled ‘ a true and correct statement of all existing contracts of [American] Powder Company and of all claims against [American] Powder Company other than those arising in the ordinary course of business,’ and contained a warranty as an inducement to the agreement that the American Powder Company ‘ has no direct or indirect liabilities, acknowledgments or commitments and that there are...