Walling v. A.H. Belo Corporation, 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716; Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. Townsend v. New York Cent. R. Co., 7 Cir., 141 F.2d 483. We agree with the District Judge that the burden was on plaintiff throughout to make out his case by a preponderance of the testimony, that he did not do so, and that he cannot recover.
Moreover, the arbitrary formula applied by the district judge, in lieu of acceptance of the master's findings, produced a judgment based upon surmise and conjecture, which cannot be sustained. See Townsend v. New York Cent. R. Co., 7 Cir., 141 F.2d 483. The Fair Labor Standards Act is of course applicable to employees compensated on a piece rate basis.
Several early decisions held that tips received by redcaps could be counted as a part of the required minimum wage, at least where there was an agreement to that effect between the employees and their employer, and a guaranty of an amount sufficient to equal the minimum wage. Williams v. Jacksonville Terminal Co., (1942) 315 U.S. 386, 62 S.Ct. 659, 86 L.Ed. 914, reh. den. 315 U.S. 830, 62 S.Ct. 909, 86 L.Ed. 1224; Townsend v. New York C.R. Co., (7 Cir. 1944) 141 F.2d 483, cert. den. 323 U.S. 717, 65 S.Ct. 47, 89 L.Ed. 577; Ryan v. Denver Union Terminal R. Co., (10 Cir. 1942) 126 F.2d 782; Harrison v. Kansas City Terminal R. Co., (8 Cir. 1942) 126 F.2d 421. Under such an agreement, the employees were required to report daily the sums they received as tips, and the employer guaranteed to pay them a sum equal to the minimum wage if the tips were insufficient, although the guaranty agreement obviously added nothing to the requirements of the Act.
"The arbitrary formula applied by the district judge, in lieu of acceptance of the master's findings, produced a judgment based upon surmise and conjecture, which cannot be sustained. See Townsend v. New York Cent. R. Co., 7 Cir., 141 F.2d 483. * * * To uphold a judgment based on such uncertain and conjectural evidence would be to rest it upon speculation." (cases cited.)
When these settled principles of statutory construction are applied to the case at hand, it emerges clearly that the statute is inapplicable to the operation of the checkroom and comparable facilities in plaintiffs' hotels. Furthermore, while neither conclusive nor controlling on this court, we observe that a comparable construction was arrived at in Townsend v. New York Central Railroad Co. (7th cir.) 141 F.2d 483, 485, where it was held the statute was inapplicable to the tips given to redcaps, inasmuch as the railroad had no published rates or charges for the services performed by such employees. For the reason stated, the judgment of the circuit court of Cook County is affirmed.