Gross' Case

A restaurant waitress sustained injury, resulting at first in total, and later in partial incapacity, and entitling her to compensation, which was awarded. In accordance with a provision of the Workmen’s Compensation Act (R. S., Chap. 55, Sec. 40), a Justice of the Superior Court entered an enforcing decree. The appeal of the employer brings the case here.

The question on appeal is whether, in ascertaining average weekly wages or earnings, the inclusion of tips — received from patrons of the restaurant by the waitress, and retained by her — constitutes legal error.

There was no disputed fact in…