ligence, and you did not request that. I do not think I will charge that.”

The request was untimely and was not in writing. Rule 51, Federal Rules of Civil Procedure, 28 U.S.C. But apart from that, we think the district court‘s charge fully and fairly covered the applicable rules of law. Plaintiff interprets the requested instruction as an expression of his view that under Pennsylvania law res ipsa loquitur or the doctrine of exclusive control is applicable to the facts of this case.

We put to one side a trial court‘s duty in instructing the jury in a res ipsa loquitur situation, for we think that doctrine is inapplicable here. Just one year ago the Supreme Court of Pennsylvania in

Ambrose v. Western Maryland Ry. Co., 368 Pa. 1, 11, 81 A.2d 895, quoted what this court said in

Sierocinski v. E. I. Du Pont De Nemours & Co., 118 F.2d 531 at page 535: “The rule of res ipsa loquitur has been limited in its application by the courts of Pennsylvania to cases involving injury to passengers through the transportation operations of common carriers or to patrons of utilities dispensing a service which, if not properly managed and controlled, may readily prove dangerous.” All of the Pennsylvania res ipsa loquitur cases cited by plaintiff fall into these two categories. In

Ryan v. Adam Scheidt Brewing Co., 3 Cir., 197 F.2d 614, which bears some factual resemblance to plaintiff‘s version of this one, we expressly declined to say that the doctrine of res ipsa loquitur is applicable in cases of this kind.

Plaintiff is left with the complaint that under the doctrine of exclusive control he was entitled to have the jury instructed that if they believed his testimony and that of his witnesses they could attribute the explosion of the Coca-Cola bottle to defendant‘s negligence. The point is without substance in this case for the district court had already gone one step further than the plaintiff sought in the requested instruction. It is true that he did not specifically instruct the jury that they could permissibly draw the inference of defendant‘s negligence if they credited plaintiff‘s testimony. He chose to state the proposition in its ultimate fashion, that if they believed the accident occurred as could be inferred from the plaintiff‘s case and including circumstantial evidence they should find for the plaintiff. That method entirely eliminated the pertinency of the first part of the plaintiff‘s request “* * * that the particular dereliction of the defendant does not have to be shown, * * *.” Presumably for that reason that portion of the request is not referred to at all in the argument on behalf of the plaintiff. The hotly controverted issue before the jury was whether the bottle simply exploded at the instant plaintiff opened the cooler or whether it was caused to break, as defendant‘s expert testified, due to a blow from the outside. A glass expert testified to support the plaintiff‘s theory. With all the evidence before it the jury preferred to reject the plaintiff‘s version of the accident. The record fully supports their finding for the defendant.

The judgment below will be affirmed.

Melva M. Graney, Hilbert P. Zarky, Lee A. Jackson, Sp. Assts. to Atty. Gen., Ellis N. Slack, Acting Asst. Atty. Gen., Mason B. Leming, Acting Chief Counsel, John M. Morawski, Special Atty., Bureau Int. Rev., Washington, D. C., for petitioner.

William P. Fonville, Dallas, Tex., for respondents.

Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.

RUSSELL, Circuit Judge.

The basic question presented by this appeal is whether the taxpayers, in computing their taxable income for the year 1945, were entitled to deduct, as costs of goods sold, the portion of the cost of meat purchased which was in excess of applicable price ceilings established under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq.

The Commissioner, by this appeal, assigned error upon the decision of the Tax Court, which held that the taxpayers were entitled to deduct the entire actual cost. This has been the uniform ruling of the Tax Court in similar cases and, so far as we are aware, of such District Courts as have considered the question. Decisions to the same effect have recently been announced by two Courts of Appeals.

Commissioner of Internal Revenue v. Weisman, 1 Cir., 197 F.2d 221;

Hofferbert v. Anderson Oldsmobile Company, 4 Cir., 197 F.2d 504. These two decisions lessen our labor and shorten our opinion, for we generally approve the reasoning and result pronounced in them. Upon their authority, the decision of the Tax Court is Affirmed.

STRUM, Circuit Judge (dissenting).

With deference to the able judges, in this circuit and elsewhere, who have taken the opposite view, I am opposed to an interpretation of the tax laws which will enable a taxpayer to gain a tax advantage by violating the price stabilization laws, thus placing himself in a better position than had he obeyed the law.

The taxing authorities should not be compelled to recognize a merchandise “cost,” the payment of which is expressly proscribed and denounced as a crime by federal law. “Cost,” as used in Treasury Regulation 111, Sec. 29.22(a)-5, means “lawful cost.”

I therefore dissent.