Hartford Accident & Indemnity Co. v. Industrial Accident Commission

RICHARDS, J.

This is an application for a writ of review. The petitioner was the insurer of one A. J. Wagner at the time of the injury for which compensation was sought by one H. F. Weidemann, an employee of said

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Wagner. Weidemann was a waiter employed in a hotel owned and operated by his employer in Stockton, California, on August 15, 1916, the date of his injuries. According to the findings of the Industrial Accident Commission he was at that time earning $45 per month in regular wages and his board, amounting to $30 per month. In addition to the foregoing earnings he received tips averaging $1.25 per day. The commission based its award not only upon the aforesaid regular wages and board of the applicant for compensation, but also upon the amount so being received by him in tips at the time of his injury. It is this portion of the award to which the petitioner herein objects in this proceeding, basing its objection upon the following two grounds: First, that the undisputed evidence showed that thy" applicant for compensation was paid the sum of $5 per month more than other waiters, which was to be in lieu of tips and which was included in his regular wages of $45 per month, for which allowance. in his award was fully made; second, that under the Workmen’s Compensation Act of California (Stats. 1913, p. 279), tips are not the proper subject of an allowance in the ease of injured employees.

As to the first of the foregoing contentions, we do not find it is borne out by the evidence in the case. The applicant for compensation was one of the waiters in the establishment of his employer, but in addition to his regular duties as such he was required during a portion of his time to absent himself from the regular dining-room in order to wait upon the officers and certain other employees of; the hotel in their private dining-room, and for this special service he received an extra $5 per month. It does not appear that this increase in wages was expressly to be in lieu of all the tips he would receive in the course of«his regular duties. The findings of the commission, on the contrary, would seem to show that during such regular service he actually did receive a sum averaging $1.25 ,per day from that source, upon the basis of which the extra allowance was made which is objected to in this proceeding. The first point urged by the petitioner is, therefore, without merit.