Claim of Begendorf v. Swift & Co.

Cochrane, J.:

The claimant, who was receiving twenty-five dollars a week as compensation from his employer, also received on an average five dollars per week as tips from the customers of the latter. The question is whether such tips should be taken into consideration in fixing the amount of compensation. He was a truck driver and delivered meat for the employer, a corporation engaged in the meat business. The tips were received by him when making deliveries of meat to the customers of the employer. It is admitted that the employer had no knowledge of these gratuities.

Pullman porters, restaurant waiters, taxicab drivers and others receiving tips from third parties are entitled to have such tips considered .in determining the amount of their awards for injuries under the Workmen’s Compensation Law providing the employers in such cases contemplate and intend that their employees shall receive such gratuities. In such cases the compensation paid by the employers is correspondingly less and they are, therefore, benefited by such gratuities. That was the theory of the decisions in Bryant v. Pullman Co. (188 App. Div. 311; affd., 228 N. Y. 579) and Sloat v. Rochester Taxicab Co. (177 App. Div. 57; affd., 221 N. Y. 491). The case is different when an employee secretly receives gratuities from outside parties not within the knowledge or contemplation of his employer.

If the claimant in this case performed services for the customers of the employer for which he was not paid by the latter he was doing something outside of his employment and compensation or gratuities received by him therefor without the knowledge of the employer cannot be made the basis of compensation. There is no evidence of custom to give tips to persons engaged in such business as the claimant. If there was such a custom no one knew it better than he and he makes no such claim. Secret compensation from third parties to an employee under the circumstances here disclosed is not consistent with his loyalty to his employer and is not commendable and certainly should not be rewarded at the expense of the employer by increased compensation for injuries.

The award should be reversed and the matter remitted to the Commission.

All concur,- except John M. Kellogg, P. J., dissenting, with a memorandum.