Hopkins v. Fred Harvey, Inc.

OPINION SUTIN, Judge. The question for decision is whether tips obtained by an employee who is a waitress and bartender should be included in the computation of compensation payments in a workmen’s compensation case. This is a matter of first impression. Section 59-10-12.13(A), N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) reads in pertinent part: [T]he average weekly wage of an injured employee shall be taken as the basis upon which to compute compensation payments and shall be determined as follows: A. . . . “[W]ages” . . . shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire . either express or implied, and shall not include gratuities received from employers or others, . . . but the term “wages” shall include the reasonable value of board, rent, housing, lodging or any other similar advantages received from the employer . . . [Emphasis added.] The trial court found that plaintiff earned, in addition to her hourly wage, an average of approximately $110.00 per week in tips. The court concluded that tips were gratuities and were not to be included in the determination of plaintiffs average weekly wage for purposes of computing her compensation payments. Plaintiff appeals. We reverse. Colorado has a statute identical with § 59-10-12.13(A), supra. Petrafeck v. Industrial Commission, 554 P.2d 1097 (Colo. 1976). Petrafeck overruled a 42 year old prior decision that denied claimant’s tips as part of her average weekly wage. The court held that to so construe the statute would render it unconstitutional. Citing a large number of jurisdictions in support thereof, Justice Erickson said: In the 42 years that have elapsed . a majority of the jurisdictions which have considered the same question which is before us today have reached a result that is diametrically opposed to that which reflected the judgment of this court in 1934. [554 P.2d at 1098.] 2 Larson’s Workmen’s Compensation Law, § 60.12 reads: In computing actual earnings as the beginning point of wage-basis calculations, there should be included not only wages and salary but anything of value received as consideration for the work, as, for example, tips, bonuses, and room and board constituting real economic gain to an employee. We do not find it necessary to cite all of the cases which support the general rule. When it is within the contemplation of the parties that tips are to be retained by an employee as part of his compensation, they are to be regarded as wages for compensation purposes. Defendant quarrels with the cases cited, except, Sturgill v. M & M, Inc., 329 A.2d 360 (Del.Supp.1974); that these cases are not concerned with statutes that specifically exclude “gratuities received from employers or others.” Defendant relies on Makris v. Top Hat Restaurant, 16 N.J.Misc. 26, 195 A. 857 (1937), and Durnil v. Grant, 187 Kan. 327, 356 P.2d 872 (1960). Makris is a short opinion by a deputy commissioner of the Workmen’s Compensation Bureau without the citation of authority. It did not influence a subsequent deputy commissioner who felt that Makris was erroneous and should not be followed. Coates v. Warren Hotel, 18 N.J.Misc. 122, 11 A.2d 436 (1940). Durnil did not involve “tips.” These cases fall short of meeting the challenge of the general rule supported by extensive authority. Sturgill said: In brief, a gift or gratuity is not what one earns — it is what he receives without earning. [329 A.2d at 362.] In the instant case, the trial court found: At the time of sustaining said compensable accidental injury, plaintiff while employed as a cocktail waitress and bartender was earning, in addition to the hourly wage, an average of approximately $110.00 per week in tips. [Emphasis added.] The word “gratuity” has many meanings. See, 38 C.J.S. p. 1073 (1943); 18A Words and Phrases, p. 435 (1956). If we followed dictionary definitions we could hold that “gratuity” was synonymous with “tip.” But in workmen’s compensation cases we do not make a fortress out of the dictionary to deny a workman adequate compensation benefits. It is a well known, notorious fact that waitresses are employed at a fixed salary with the further understanding that tips received are retained as further recompense for services rendered. The amount of tips received influences the amount paid the employee by the employer. Coates, supra. An employer and the compensation carrier must not search a haystack for a needle to seek relief. Each time that it is done, they discover ultimately that the needle is not worth the search. Reversed. This case is remanded to the district court (1) to set aside the judgment entered, (2) determine that the average weekly wage of plaintiff is $169.33 as found by the court and award plaintiff workmen’s compensation benefits for total liability as provided by § 59-10-18.2, N.M.S.A.1953 (Vol. 9, pt. 1, 1975 Supp.) during the period of that disability, (3) award plaintiff a reasonable attorney fee for the prosecution of the case in the district court and, in its discretion, take into consideration the services of her attorney on this appeal. IT IS SO ORDERED. HERNANDEZ, J., specially concurring. LOPEZ, J., concurs.