362 Mass. 881

November 6, 1972

The defendant appeals from an order of the Appellate Division dismissing a report in an action of tort for assault and battery. According to the report, the plaintiff, a patron of the defendant's tavern, was beaten with a blackjack and kicked by a bartender employed by the defendant to maintain order and decorum, and the assault was committed by the bartender "for the purpose of accomplishing the work of the defendant and within the scope of his employment." Two other bartenders testified for the defendant that they and a doorman were present during the affray, and one of them testified that the plaintiff called the first bartender a "faggot" before the bartender directed any remarks to the plaintiff. In our opinion the evidence reported warranted the trial judge and the Appellate Division in concluding that the bartender was acting within the scope of his employment. Ridge v. J. J. Foley Cafe, Inc. 318 Mass. 310 , 311, and cases cited. See Suckney v. Bert P. Williams, Inc. 355 Mass. 62 , 64-65. We need not

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consider the suggestion that there may have been negligence in the defendant's selection of personnel.

Order dismissing report affirmed.