Previte v. Butcher Boy Steak House, Inc.

The defendant’s requests for rulings were grounded (as are the arguments in its brief) on the faulty premise that the plaintiff was required to show that Ferro (as well as Yameen) was an agent, servant or employee of the defendant at the time of the assault; it was enough (as the judge could have found) that Ferro was acting under Yameen’s control. Schultz v. Purcell’s, Inc. 320 Mass. 579, 581 (1947). Contrast Perras v. Hi-Hat, Inc. 326 Mass. 78, 80-81 (1950). There was no request to the effect that the evidence was insufficient to warrant a finding for the plaintiff, nor any request which raised any question of a possible variance between the pleadings and the proof (see Berwin v. Levenson, 311 Mass. 239, 246 [1942]). Exceptions overruled.