Findlen v. Taunton

• Decision Date: 21 April 1982
• Citation: 433 N.E.2d 1259,13 Mass.App.Ct. 1041
• Parties: Fred J. FINDLEN et al. 1 v. Joel TAUNTON et al. 2
• Court: Appeals Court of Massachusetts

Page 1259

433 N.E.2d 1259

13 Mass.App.Ct. 1041

Fred J. FINDLEN et al. ¹ v. Joel TAUNTON et al. ²

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 17, 1981.

Decided April 21, 1982.

Douglas G. Moxham, Boston, for plaintiffs.

Thomas Lesser, Northampton (Joseph T. Doyle, Boston, with him), for defendants.

Before GOODMAN, PERRETTA and KASS, JJ.

RESCRIPT.

The Findlens, who did business as Fred J. Findlen & Sons (Findlen), were the general contractor on a project for the Winchendon Housing Authority. In that connection they hired Taunton, Geisler, McCue and Baker, who did business as Rainbow Painting Company (Rainbow), as the painting subcontractor. Before the painting work was done, Findlen discharged Rainbow because it was not carrying workers' compensation insurance. That fact had been forcefully called to Findlen's attention by several unions which picketed the job in protest and shut it down. If Rainbow was a partnership it was not required to carry workers' compensation insurance with respect to its partners. G.L. c. 152, § 1(4). Ryder's Case, 341 Mass. 661, 665 & n.2, 171 N.E.2d 475 (1961). The only factual issue in the case, therefore, was whether Rainbow was a partnership. A jury determined that issue in favor of Rainbow and awarded damages of $7,500 to Rainbow on its counterclaim against Findlen. This appeal followed.

1. During direct examination Findlen's counsel asked Fred Findlen, with respect to a conversation between the latter and union officials, "Would you tell us, sir, what you remember of that conversation as it related to the reason for the picket lines?" The judge correctly sustained Rainbow's objection to the question. The state of mind of the union officials, see Elmer v. Fessenden, 151 Mass. 359, 360-361, 24 N.E. 208 (1890); Brannen v. Bouley, 272 Mass. 67, 72, 172 N.E. 104 (1930), had no bearing on the case which would have entitled Findlen to avail itself of the state of mind exception to the general hearsay rule. Contrast Commonwealth v. Borodine, 371 Mass. 1, 7, 353 N.E.2d 649 (1976); see Liacos, Handbook of Massachusetts Evidence 348-349 (5th ed. 1981). The motive or reason which underlay the unions' job action would not legally justify Findlen in terminating its contract with Rainbow if Rainbow was performing its end of the bargain. At best, had Findlen been permitted to answer the question, the evidence would have been cumulative since the unions' concern about Rainbow's not carrying workers' compensation and about the wages it paid came in on three other occasions.

2. The judge was not required to instruct the jury that Rainbow could not simultaneously be a partnership and a corporation or a division of a corporation, as Findlen requested. This would have been an accurate statement of the...