EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY v. Bryant

130 Ga. App. 596 (1974)

203 S.E.2d 896

EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY et al. v. BRYANT.

48725.

Court of Appeals of Georgia.

Argued November 5, 1973.

Decided January 18, 1974.

Savell, Williams, Cox & Angel, John M. Williams, Elmer L. Nash, for appellants.

Rich, Bass, Kidd & Broome, Charles T. Bass, Dennis M. Hall, for appellee.

QUILLIAN, Judge.

This is an appeal from an award granting *597 compensation to the claimant for injuries which she received when she fell while working as a waitress. Held:

1. The evidence while conflicting was sufficient to support the award that the claimant received an injury which arose out of and in the course of her employment resulting in her total disability.

2. The claimant was injured on the first day of her employment and there was no similar employee whose wages could be used to determine the claimant's average weekly wage. Therefore, the board was correct in applying Code § 114-402 (3), as amended Ga. L. 1945, p. 486, to compute the wages upon which compensation was determined.

The main issue in this case is whether the board was correct in including the tips the claimant received as part of her wages when computing the compensation to which she was entitled. While this question is of first impression in this state, the great weight of authority is that in this type of employment tips are considered as a portion of the remuneration an employee receives for his services. 2 Larson, Workmen's Compensation Law, § 60.12; Larochelle v. Hickory House, Inc., 80 R.I. 334 (96 A2d 830); Deason v. Travelers Ins. Co., (La. App.) 242 S. 2d 906; Bryson v. Benton, 217 Tenn. 116 (395 SW2d 794); Powers' Case, 275 Mass. 515 (176 NE 621). We feel the position in the above cited cases is sound and is therefore adopted.

Judgment affirmed. Bell, C. J., and Deen, J., concur.