Home ALBERT S. PREVITE, JR. vs. BUTCHER BOY STEAK HOUSE, INC.

3 Mass. App. Ct. 703

January 31, 1975

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.

Home WALTER ILJINAS'S (dependent's) CASE.

3 Mass. App. Ct. 703

January 31, 1975

The insurer appeals from a final decree of the Superior Court affirming a decision of the reviewing board awarding dependency compensation. 1. The employee was found dead at his place of employment. As both parties concede that G. L. c. 152, Section 7A, as amended by St. 1971, c. 702 (which took effect during the course of the hearings before the single member), is applicable to this case, the insurer's contention that the claimant failed to sustain her burden of proof fails. Riordan's Case, 362 Mass. 882 (1972), does not hold that the force of prima facie evidence warranting a finding disappears when the evidence warrants a finding to the contrary. 2. After the insurer objected to the hypothetical question put to the claimant's medical expert on the ground that it assumed certain facts not in evidence, the witness was directed to answer the question without assuming any of the facts objected to. The defects objected to were thereby cured. The additional assumption thereafter

Page 704

added, that the employee had worked that day and that evening performing his usual duties, could have been found from the evidence and inferences which could properly be drawn therefrom. Anderson v. Albertstamm, 176 Mass. 87 , 91-92 (1900). McCormick, Evidence, Section 14, p. 33 (2d ed. 1972). Hughes, Evidence, Section 328, p. 418 (1961).

Decree affirmed.