Wanoski v. Delaware, Lackawanna & Western Railroad Co., 201 Westinghouse Electric & Manufacturing Co.-Duhan v., 563 Westinghouse Electric & Manufacturing Co.-Kihm v., 106 Zarney v. Delaware, Lackawanna & Western R. R. Co., Zimmer-Plohr v., Ziman Brothers-Williams v., Zimmerman v. Susquehanna Coal Co., Zinger v. Clarke Can Co., Zlothikoff v. Enkien, Zorobeck v. Philadelphia & Reading Ry. Co., Zukowsky v. Philadelphia & Reading Coal & Iron Co., 203 163 406 561 509 501 386 562 565 483 194 417 TABLE OF ABBREVIATIONS. A. C.-Law Reports, Appealed Cases (England). Atl.-Atlantic Reporter. B. W. C. C.-Butterworth's Workmen's Compensation Cases (Great Britain and Ireland). Conn.--Connecticut Reports. Dept. Reports-Department Reports (Pa.). Dist. Rep.-Pennsylvania District Reports. Ill. Illinois Supreme Court Reports. K. B.-Law Reports-Kings Bench-(England). L. R. A.-Lawyer's Reports Annotated. Mass.-Massachusetts Reports of Supreme Judicial Court. Mich. Ind. Aec. Bd.-Reports of Industrial Accident Board of Michigan. N. E.-Northeastern Reporter. N. J. and N. J. L.-New Jersey Law Reports. N. W.-Northwestern Reporter. N. Y.-New York Court of Appeals Reports. N. Y. Supp.--New York Supplemental Reports, also cited as N. Y. S. N. C. C. A.-Negligence Compensation Cases Annotated, also cited as Neg. Comp. Cases. Neg. and Comp. cases, also N. and W. C. A. and Negligence C. C. A.-Negligence and Compensation Cases Annotated. Op. Ind Bd. of Ill.-Opinions of Industrial Board of Illinois. Op. Sol. Dept. C. & L.-Opinions of the Solicitor of the Department of Commerce. Pa.-Pennsylvania Supreme Court. Pa. W. C. Bd. Dec. Vol. 1-Pennsylvania Workmen's Compensation Board Decisions, 1916.. P. C. C.-Pennsylvania County Court Reports. Pac.-Pacific Reporter. Q. B.-Law Reports Queens Branch (England). Rep. Mass.-Ind. Acc. Bd.-Report of Mass Industrial Acc. Bd. Rep. Cases Mass. W. C. A.-Reports of cases under the Mass. Wks. Comp. Act, July 1, 1912, to June 30, 1913, inc. R. I.-Rhode Island Supreme Court Reports. S. E.-South Eastern Reporter. S. W.-South Western Reporter. Sc. L. R.-Scottish Law Reports. U. S.-United States Reports Supreme court. W. C. C.-Workmen's Comp. Cases published by Butterworth & Co. (London). Wash.-Washington Reports. Wis. Ind. Com.-Wisconsin Industrial Commission. DECISIONS OF THE BOARD). Stockribuski v. Lehigh Valley Coal Co. Interpretation of Section 309-Deduction of cost of supplies. The following clause in Section 309, "Nor shall it (the term "wages") include amounts deducted by the employer under contract for hiring for labor, material, supplies, tools or other things furnished or paid for by the employer and necessary for the performance of such contract by the employe" is interpreted to mean that the cost of such supplies shall not be deducted from the gross earnings in computing compensation, unless it was a condition in the contract of hiring that the employer should furnish or pay for such labor, etc., and deduct the cost thereof from the gross earnings. Burden of proof. The burden of proving such a contract by competent evidence is on the defendant. Appellant represented by D. W. Kaercherer, Pottsville. OPINION BY COMMISSIONER LEECH-January 5, 1917. There are two questions of fact raised by this appeal, the first of which is: Did the claimant suffer an injury by reason of an accident occurring in the course of his employment? The Referee decided this question in favor of the complainant, and in this he was fully warranted under the evidence and the opinion of the Board in Smith v. Pittsburgh Coal Co., 2 Dept. Reports 1119, in which it was held that: "An injury by accident' is an injury resulting from a mishap or untoward event which was not expected or designed. Although the injury received is due to the performance of an operation which is in the ordinary course of the employe's work, it is an injury by accident,' and is compensable." "Where a strain causes a protrusion of the bowels, the injury is compensable, even though the protrusion occurs at a point weakened by congenital malformation. or pre-existing hernia." This finding of the Referee is not seriously contested by the defendant company. The Referee was amply justified by the facts and the law applicable thereto in finding that the claimant suffered a compensable injury as the result of an accident occurring in the course of his employment, and in this we sustain him. The second question gives us more concern: Should the amounts deducted by the employer from the gross earnings of the employe for supplies, etc., furnished by the employer and necessarily used by the employe in the performance of his contract be included or excluded in computing the "average weekly wages"? This question was considered by the Board with some degree of care in Michael v. Pardee, 2 Dept. Reports 1395. Reitmyer v. Coxe Bros., 2 Dept. Reports 1791. In the last case cited the Board interpreted the following clause in Section 309 of the Act, to wit: "Nor shall it (the term 'wages') include amounts deducted by the employer, under contract of hiring for labor, material, supplies, tools or other things furnished or paid for by the employed and necessary for the performance of such contract by the employe." to mean that the cost of such supplies shall not be deducted from the gross earnings of an injured or deceased employe in computing compensation, unless it was a condition in the contract of hiring that the employer should furnish or pay for the labor, materials, supplies, tools or other things necessary for the performance of the employe's contract and deduct the cost thereof from his gross earnings. The burden of proving such a contract by competent evidence is on the defendant. There is a very important distinction between the two cases above cited and the one under consideration. In those the employe was dead and a higher degree of proof was required because one of the parties to the contract of hiring was dead. In the present case the employe was only injured, and was able to be present at the hearing and testified before the Referee. In Michael v. Pardee, supra, we said: "It must be conceded that if there were such a contract of hiring,' either express or implied, between the employer and employe, under which the employer is required to furnish or pay for supplies, etc., necessarily used by the employe in the performance of his contract, and deduct the cost thereof from the gross earnings of the employe, then it is clear that the cost of such supplies, etc., should be excluded in computing his 'average weekly wages.'" and further called attention to the rules adopted by the Board for ascertaining weekly wages, one of which has since been materially changed, so as to read as follows: "Do not deduct from the amount agreed upon in the contract (a) The value of materials, supplies, tools and |