*1615 1. The petitioner and the Greer Steel Company were affiliated during the year 1920.
2. The value of petitioner's coal lands at March 1, 1913, determined for depletion purposes.
3. The deductibility of the cost of certain items of coal mine and plant equipment purchased in 1920 and charged to expense account of that year determined.
4. Invested capital for 1920 adjusted with respect to an amount of $15,386.43 representing the cost to the petitioner of certain surface lands.
5. The cost to the petitioner at December 31, 1919, of certain coal lands determined for invested capital purposes.
6. The inclusion in invested capital for 1920 of certain items of mine and plant equipment purchased in prior years and charged to expense account in those years denied in the absence of evidence as to the character of the separate items and the purposes for which they were used.
7. In the absence of evidence warranting the restoration to capital account of the items of mine and plant equipment purchased in prior years and charged to expense account, no deductions for depreciation thereof may be had in 1920.
8. Special assessment denied.
*646 This proceeding is for the redetermination of the petitioner's tax liability for the calendar year 1920. The respondent has asserted a deficiency for that year in the amount of $140,658.81. The issues are as follows:
(1) Whether the petitioner and the Greer Steel Company were affiliated during 1920.
(2) Whether the respondent has allowed the petitioner a reasonable deduction from its gross income on account of the depletion of its coal property in 1920.
(3) Whether the petitioner is entitled to the deduction in 1920 of the amount of $36,968.18 representing the cost of certain items of mine and plant equipment purchased in that year and charged to expense account.
(4) Whether the petitioner is entitled to include as a part of its statutory invested capital for 1920 the amount of $15,386.43, representing the cost of certain surface lands.
(5) Whether the petitioner is entitled to include in its invested capital for 1920 the amounts of $7,542.32, representing the cost of *647 coal lands charged to its depletion reserve, and $15,000, *1617 representing a credit made to its coal lands account in order to set up a royalty reserve. Also, whether the petitioner is entitled to an adjustment of its invested capital on account of depletion sustained with respect to the item of $7,542.32.
(6) Whether the petitioner is entitled to include in its invested capital for 1920 the cost of certain items aggregating $57,149.37 purchased and charged to expense account in the prior years 1910 to 1914, inclusive.
(7) Whether the petitioner is entitled to a deduction from its gross income for 1920 on account of the exhaustion, wear, and tear of the items of mine and plant equipment purchased in the prior years 1910 to 1914.
(8) Whether the petitioner is entitled to have its profits tax for 1920 determined in accordance with the provisions of section 328 of the Revenue Act of 1918.
FINDINGS OF FACT.
The petitioner was organized under the laws of the State of West Virginia on January 19, 1907. The Greer Steel Company, hereinafter referred to as the Steel Company, was organized under the laws of the State of West Virginia on January 1, 1920. The petitioner during 1920 was engaged in the business of mining coal and manufacturing*1618 coke. The Steel Company was engaged in manufacturing cold rolled strip steel and in mining limestone. Both the petitioner and the Steel Company had their principal offices at Morgantown, W. Va.
The stockholders of both companies during 1920, the number of shares of stock, and the percentage of stock held by each stockholder, were as follows:
| Preston County Coke Co. | Greer Steel Co. | |||
| Stockholders | Shares of common stock held | Percentage | Shares of common stock held | Percentage |
| H. C. Greer | 1,548 | 61.79 | 3,717 | 74.34 |
| Agnes R. Greer | 300 | 11.97 | 1,280 | 25.60 |
| W. L. Curry | 405 | 16.16 | ||
| Everhart Bierer | 150 | 6 | 1 | .02 |
| Carl Springer | 50 | 2 | ||
| J. W. Abraham | 50 | 2 | ||
| Chas. Greer | 1 | 0.04 | ||
| A. W. Hawley | 1 | 0.04 | 1 | .02 |
| H. C. Cappel | 1 | .02 | ||
| Total | 2,505 | 100.00 | 5,000 | 100.00 |
No preferred stock was ever authorized or issued by either company.
*648 Agnes R. Greer was the wife of H. C. Greer. Charles Greer was H. C. Greer's father. W. L. Curry was a close personal friend of H. C. Greer. They attended college together and continued their friendship until Curry's death in 1924. Curry took no active interest in the petitioner's business; *1619 on the two occasions when his stock was voted, which occurred prior to 1913, it was voted by H. C. Greer by proxy. H. C. Greer made substantial loans to Curry in 1916 and 1921, which were outstanding at the time of Curry's death and were settled by his estate. Carl Springer also was a personal friend of H. C. Greer's. He never voted his stock or took any interest in the management of the company. J. W. Abraham and H. C. Greer had been close personal friends for many years. Abraham voted his stock only once, either in 1907 or 1908. He took no active interest in the management of petitioner's affairs.
During 1920, H. C. Greer, Agnes R. Greer, Everhart Bierer, and A. W. Hawley were four of the five directors of the petitioner. H. C. Greer was president, Everhart Bierer, secretary and treasurer, and A. W. Hawley, auditor.
The board of directors of the Steel Company in 1920 were H. C. Greer, Agnes R. Greer, and Everhart Bierer. H. C. Greer was president of the company and A. W. Hawley, auditor. The management and control of both the petitioner and the Steel Company rested entirely in the hands of H. C. Greer at all times. At all stockholders' meetings of both companies the*1620 stock was voted either directly by H. C. Greer or in accordance with his wishes.
There was an oral agreement between H. C. Greer and the other of petitioner's stockholders that any stockholder desiring to sell his stock would first offer it to H. C. Greer. This agreement was carried out at all times. All sales of stock taking place after the original issue were made to H. C. Greer, his wife, or the petitioner.
The petitioner and the Steel Company kept a separate set of books. At the end of each year their books were assembled at the central office of both companies at Morgantown for audit.
On account of a labor shortage affecting the petitioner's output, the limestone plant of the Steel Company, located about two miles from the petitioner's plant, was closed down during the spring of 1920 and its employees, consisting of 30 men, its superintendent, mine cars, livestock, tools, and equipment were transferred to the petitioner's plant for a period of four of five months. During this period the petitioner furnished the Steel Company with a small amount of coal and electric current. No charge was made by either company for these exchanges. During 1920 the petitioner sold*1621 coke to certain steel companies, with the understanding that the steel companies would supply the Steel Company with the steel needed by it. It was a benefit to the Steel Company to be able to purchase *649 from the other companies the steel which it needed and also a benefit to the steel companies to be able to purchase coke from the petitioner.
During 1920 the petitioner made a loan to the Steel Company of $31,000 for which no interest was charged. Other loans were made in subsequent years.
The Steel Company sustained an operating net loss for 1920 in the amount of $41,453.79. It had a statuory invested capital for the calendar year 1920 in the amount of $558,500.
The coal land owned and worked by the petitioner during 1920 was located in the Valley District, Preston County, West Virginia. It was acquired prior to 1902 by H. C. Greer and two associates. They sold the property in 1902 to the Masontown Coal & Coke Company for approximately $135,000 cash.
The Masontown Coal & Coke Company was a holding company for six large steel companies. These companies had intended to develop the coal lands purchased by the Masontown Coal & Coke Company, but they later decided*1622 that the tract was not large enough, and in 1907 offered it for sale. H. C. Greer and his two associates, upon learning that the property was again for sale, negotiated for its purchase, intending at that time to organize a corporation to develop it. Pursuant to these plans an agreement was reached whereby the Masontown Coal & Coke Company was to resell the coal lands to H. C. Greer and others at the original cost to it in 1902, plus 6 per cent interest and taxes, making a total purchase price of approximately $175,000. The amount was payable one-fourth in cash and the balance in three equal annual installments. The proposed corporation, the petitioner herein, was organized and in 1907 took title to the property under the terms agreed upon. H. C. Greer, Keighley and Barnes, the organizers of the petitioner, endorsed the notes given by the company as evidence of the unpaid balance of the purchase price.
The coal lands thus acquired by the petitioner contained approximately 1,500 acres of the Upper Freeport seam, having a thickness of four feet and a recoverable tonnage of 6,000 tons per acre, or a total coal content of 9,000,000 tons. An analysis revealed 58 to 60 per cent*1623 in fixed carbon, 28 to 30 per cent in volatile matter, approximately 9 per cent in ash, 1 per cent in sulphur, and 1 per cent in moisture.
During the period that the coal lands in question were held by the Masontown Coal & Coke Company, from 1902 to 1907, the Morgantown & Kingwood Railroad was extended to an eastern junction with the Baltimore & Ohio Railroad at Rowlesburg, thereby furnishing an eastern outlet for coal and coke shipped from this area. Also, during that period, the demand from the steel companies for coal and coke greatly increased.
*650 In May, 1907, the petitioner sold 62 acres of its coal lands to the Williams Coal & Coke Company at a price of $200 an acre. It received offers in that year of $200 an acre for 200 acres more of the tract. In 1911, the La Belle Iron Works offered the petitioner $650,000 for the entire property. In 1912 an offer of $300 an acre for 60 acres of the tract was made to the petitioner by the Elkins Coal & Coke Company. All these offers were rejected.
The petitioner's coal production for the years 1908 to 1920, inclusive, was as follows:
| Year | Production in tons |
| 1908 | 26,098 |
| 1909 | 101,478 |
| 1910 | 130,405 |
| 1911 | 133,759 |
| 1912 | 148,059 |
| 1913 | 133,982 |
| 1914 | 102,096 |
| 1915 | 67,144 |
| 1916 | 99,033 |
| 1917 | 127,959 |
| 1918 | 165,597 |
| 1919 | 110,339 |
| 1920 | 217,989 |
*1624 The petitioner's estimated profits in 1907 were 50 cents per ton on coke and 30 or 35 cents per ton on coal. In 1913 its estimated profits were $1.50 per ton on coke and $1 per ton on coal. The fair market value of petitioner's coal lands on March 1, 1913, was $300 per acre, or $450,000 for the 1,500-acre tract. In 1917 the petitioner increased the book value of its coal lands to $1,200,000.
The petitioner's plant, including the coke ovens, was completed in 1910. The work was done under the supervision of Everhart Bierer, the petitioner's superintendent. No other engineers or architects were employed. Bierer was a man of large experience and expert knowledge in the construction of coke ovens. Under his direction 194 of petitioner's coke ovens were constructed with the capital set aside for the construction of 100 ovens. A saving of about $200 per oven over the cost of construction to petitioner's competitors was thus effected. In his deficiency notice the respondent reduced the petitioner's statutory invested capital for 1920 by an amount of $15,386.43 designated "Value Allowed For Surface Lands." This adjustment resulted from the respondent's determination that the amount*1625 in question was reflected in invested capital under cost of coal lands. Respondent now concedes that he was in error and that the item of $15,384.43 should be restored to petitioner's invested capital for 1920.
During the years 1910 to 1912, inclusive, the petitioner purchased certain coal lands for the sum of $7,542.32, which amount it erroneously charged to depletion reserve. On December 31, 1916, the item was taken out of depletion reserve account and charged to coal lands account.
On January 21, 1913, the petitioner credited its coal lands account and charged depletion reserve account with an item of $15,000.
*651 The respondent's 30-day letter based on the report of an examining revenue agent shows a cost of coal lands at December 31, 1919, of $163,007.25, with an addition of $12,939.75, making a total cost of $175,947, which is the amount used by the respondent in his computation of invested capital for 1920, as shown in the deficiency notice. The computation of invested capital appearing in the deficiency notice also shows a net addition to invested capital of $9,868.70 by reason of excessive additions to petitioner's depletion reserve account over the years*1626 1908 to 1919, inclusive. The deficiency notice further shows a reduction of invested capital in the amount of $1,487.21 on account of "insufficient depletion adjustment." This amount is computed on the basis of a cost of $175,947 and coal en bloc of 800,000 tons. Petitioner contends that the amount of $1,487.21 should be restored to its invested capital.
During the years 1910 to 1914 the petitioner made the following additions to its plant equipment at the costs shown:
| Power plant | $8,877.96 |
| Store building | 7,724.66 |
| Reservoir | 4,278.72 |
| Slack coal crusher | 2,274.56 |
| Electric light plant | 2,113.35 |
| Laboratory | 1,216.76 |
| Storage bin | 3,605.19 |
| Mine cars | 3,096.03 |
| Mine openings - motor doors | 5,612.31 |
| Power hammer | 400.00 |
| Air pump | 92.25 |
| Fan and engine | 261.25 |
| Valve reseater | $102.50 |
| Boiler shaking grates | 252.45 |
| 25" radial drill | 228.56 |
| Motor and fan | 226.50 |
| Lathes | 253.50 |
| D. C. Engine and generator | 3,200.00 |
| Adding machine and vault | 469.50 |
| Mine rails | 12,363.32 |
| Pool room and machine | 500.00 |
| 57,149.37 |
All of the above items were charged to expense account in accordance with the petitioner's long established practice of charging to expense account*1627 all items that did not tend to increase the output of the mine. The average useful life of the property was approximately 10 years. The respondent did not include any amount in respect thereof in petitioner's invested capital for 1920 and did not allow any deduction for exhaustion thereof.
During the calendar year 1920 the petitioner purchased the following items of equipment which it charged to expense account of that year:
| Fan | $250.00 |
| Pump | 278.00 |
| Steel rails order #4787 | 1,803.39 |
| Steel rails order #4910 | 2,864.36 |
| Steel rails voucher record p. 135 | 2,497.73 |
| Steel rails voucher record p. 139 | 1,276.70 |
| Bending machine and dies | 148.00 |
| Sullivan mining machine | 4,000.00 |
| Covington coke machine | 12,500.00 |
| Thew steam shovel | 11,350.00 |
| Total | 36,968.18 |
*652 Of the above listed items of equipment the fan, pump, steel rails, bending machine and Sullivan mining machine all served to maintain the normal output of coal rather than to increase the production of the mine.
The Covington Coke Machine was used to draw the coke from the ovens mechanically, whereas the work had been done theretofore by hand labor. The shortage of labor and the laboriousness*1628 of the work made it necessary to acquire the machine.
The steam shovel was used to handle the coke after its removal from the ovens. There was at times a shortage of available cars for shipping the coke which, if left in the ovens too long, suffered considerable waste. By use of a steam shovel the coke, upon being withdrawn from the ovens, could be placed on sidings and later loaded in cars when convenient.
The petitioner employed both the machine method and the pick method of mining coal.
The respondent has computed the petitioner's excess-profits tax for 1920 at $258,683.41 upon a net income of $719,299.31, and an invested capital of $507,791.33. The deficiency notice asserts a total tax liability of $303,841.88.
OPINION.
SMITH: 1. Affiliation. - The petitioner claims affiliation with the Greer Steel Company on the grounds of ownership or control of substantially all of the stock of both companies by the same interests. See section 240(b), Revenue Act of 1918.
The majority stockholders of the petitioner, H. C. Greer and Agnes R. Greer, owned substantially all of the stock of the Greer Steel Company but the petitioner's minority stockholders, owning approximately*1629 26 per cent of the petitioner's stock, owned no interest in the Greer Steel Company, except for the one qualifying share owned by Bierer. The petitioner's principal minority stockholders were W. L. Curry, who owned 405 shares, or 16.16 per cent; Everhart Bierer, who owned 150 shares, or 6 per cent; and Carl Springer and J. W. Abraham, who owned 50 shares, or 2 per cent each. Except for the one qualifying share owned by Bierer, none of these individuals owned any stock in the Steel Company. Only 71.89 per cent of the petitioner's stock was owned by the stockholders common to both companies. The petitioner does not contend that this constituted substantially all of the petitioner's stock. It does contend, however, that the stock of both companies was controlled by the same interests; that H. C. Greer actually controlled the stock and dominated the policies of both companies and that H. C. Greer, Agnes R. Greer, Everhart Bierer and A. W. Hawley constituted *653 the same interests within the meaning of the statute; and that the companies operated as a single business unit.
The respondent relies upon the more strict rule of ownership or control by the same beneficial*1630 interests and cites ; ; ; .
The evidence leaves no doubt in our minds that H. C. Greer actually controlled all of the stock as well as the business policies of both companies. There were also intercompany transactions tending to formulate the separate companies into a single business unit. For a period of five months in 1920, at a time of labor shortage, the Steel Company transferred labor and equipment from its lime plant to the petitioner without cost. At the same time the petitioner furnished the Steel Company with a small amount of electric current. There were other intercompany transactions and working agreements of mutual benefit. The petitioner lent the Steel Company $31,000 in 1920 upon which no interest was charged.
We think that this unity of ownership and control coupled with the community of business interests which existed during the year 1920, entitled the petitioner and the Steel Company to the status of affiliated*1631 corporations in that year. See .
2. Depletion. - The petitioner contends that the deduction allowed by the respondent for depletion of its coal lands in 1920 is inadequate; that the depletion allowance should be computed upon a March 1, 1913, value of $400 per acre, whereas the respondent in his deficiency notice has determined a value of $300 per acre.
We are of the opinion that the evidence before us does not warrant any increase of the value as determined by the respondent. The extension of the Morgantown & Kingwood Railroad and the increase in demand for coal and coke; which the petitioner claims were factors in the increase in value of the coal lands, occurred prior to 1907, the year in which the petitioner acquired the property in an arm's-length transaction for less than $120 an acre. In 1907 the petitioner sold 62 acres for $200 an acre and received an offer in that year of $200 an acre for an additional 200 acres. In 1912 the Elkins Coal Company offered to purchase 60 acres at $300 an acre. There was a further lump-sum offer of $650,000 for the entire property, but in this offer there was no segregation of*1632 coal lands from the plant equipment.
H. C. Greer, the petitioner's president and principal stockholder, testified that in his opinion the coal lands had a value at March 1, 1913, of at least $400 an acre. He did not state any facts other than those discussed above in support of his valuation. Considering all *654 of the evidence the petitioner's contention for a value at March 1, 1913, in excess of $300 an acre as determined by the respondent is not properly supported.
3. Expense deductions. - In 1920 the petitioner purchased and charged to expense account various items of mine and plant equipment at an aggregate cost of $36,968.18, which it claims as a deduction of that year. The cost of each separate item and the purpose for which it was used are set forth in the above findings. The petitioner contends that the items all served to maintain the normal production of coal and coke and did not increase production, decrease the cost of production, or add to the capital value of its property. We are satisfied from the evidence that the fan, pump, steel rails, bending machine, and mining machine come within the petitioner's claim and that they are deductible as expenses*1633 of the year 1920 under the rule laid down by the courts in ; ; . See also .
The facts are different as to the two remaining items - the coke machine and the steam shovel. The coke machine was used exclusively in removing the coke from the ovens and the steam shovel was used in handling the finished coke after removal from the ovens. The conversion of coal into coke is not a mining process, but is a manufacturing process. The petitioner's mining operations ceased when the coal was removed from the mine and delivered at its coke plant. Since neither the coke machine nor the steam shovel was used in this process, they can not be classified as items of mine equipment and as such charged to expense account. They are clearly capital expenditures returnable to the petitioner through depreciation allowances.
4. Invested capital. - The respondent has conceded that petitioner's invested capital as computed in*1634 the 30-day letter was erroneously reduced by the amount of $15,386.43, representing the cost of surface lands.
5. Invested capital. - The petitioner contends that its invested capital should be further adjusted on account of the items of $7,542.32, representing the cost of additional coal lands acquired in 1910 and 1912, and $15,000, representing an erroneous credit to coal lands account in order to set up a royalty reserve.
The computation appearing in respondent's 30-day letter shows a cost of coal lands at acquisition of $163,007.25, with an addition of $12,939.75, making a total cost of $175,947, which is the amount shown in the deficiency notice. We do not know what the $12,939.75 adjustment represents. The petitioner's witness, H. C. Greer, testified that the petitioner paid approximately $175,000 for the original *655 1,500-acre tract purchased in 1907. The evidence further shows that the petitioner in 1907 sold 62 acres of its coal lands for $12,400 and in 1910 and 1912 purchased additional acreage for $7,542.32. We can not tell from the information at hand whether or not these transactions were taken into account by the respondent in his determination*1635 of the cost of the coal lands. It is not shown either that the book entries with respect to the item of $15,000, which the evidence shows was erroneously credited to coal lands account and charged to depletion reserve in 1913, in any way affects the cost of the coal lands to the petitioner, or that the respondent has not made whatever adjustment was necessary on account thereof in his determination of the cost. In these circumstances we will not disturb the Commissioner's determination that the cost of petitioner's coal lands for invested capital purposes was $175,947.
6. Invested capital. - The petitioner offers as an alternative contention, in the event that the deduction of the amount of $36,968.18 representing the cost of the items of equipment purchased in 1920 is denied, that its invested capital should be increased by the amount of $52,401.15, representing the cost of certain items purchased and charged to expense account during the years 1910 to 1914, inclusive. In view of our partial disallowance of the deduction claimed in issue 3, we will assume that the petitioner urges its alternative contention.
A list of the items in question showing the date of purchase*1636 and the cost of each appears in our findings above, the aggregate amount thereof being $57,149.37 instead of $52,401.15, the amount claimed in the petitioner's original and amended petitions. The evidence before us contains no further information about any of the items. We do not know for what specific purposes they were used, or whether in the process of mining coal or the process of manufacturing coke. Some of the large items such as mine rails, mine cars, and mine openings appear to be similar to those items purchased in 1920 which we have held were correctly charged to the expense account of that year. It is possible that the facts pertaining to the character of the other items of equipment and the purposes for which they were used would warrant the restoration of some of them to capital account of the prior years, but this information is not before us. The petitioner's contention is therefore denied.
7. Depreciation. - The petitioner offers a further alternative contention, in the case of an adverse decision in issue three, that it is entitled to the deduction in 1920 of a reasonable allowance for exhaustion, wear and tear of the equipment purchased on the prior years*1637 1910 to 1914, inclusive, referred to above in issue 6. This contention is likewise denied. All of the items in question were charged to expense account of the prior years in conformity with *656 the petitioner's method of keeping its books and accounts. The evidence before us does not show that any of the items represented capital expenditures or that any adjustment of the petitioner's 1920 tax liability should be made on account thereof.
8. Special assessment. - The petitioner contends that, because of abnormalities affecting its capital and income, its profits tax for 1920 should be determined in accordance with the provisions of section 328 of the Revenue Act of 1918. The abnormal conditions claimed by the petitioner are that a substantial part of the value of its coal lands was excluded from its statutory invested capital; that the savings of $200 an oven on the construction of 194 coke ovens resulted in a value ascribable to these assets greatly in excess of the value at which they were carried on its books and included in its invested capital; and that the use in 1920 of the labor and equipment from the lime plant of the Steel Company for a period of five months*1638 without any offsetting expense created an abnormality affecting its income for that year.
The petitioner's claim for the right to special assessment rests principally upon the grounds that the appreciated value of its coal lands, or the excess of their 1920 value over their cost, is not reflected in its invested capital. The petitioner contends that the coal lands had a value in 1920 in excess of $1,000,000.
The statute makes no provision for the inclusion in invested capital of the appreciated value of assets used in a business, but it purposely limits invested capital to the capital actually embarked in the enterprise (section 326 of the 1918 Act). .
There is no evidence before us that the increase in the value of the petitioner's coal lands was in itself abnormal or that it gave rise to any abnormalities affecting either capital or income. We have held in numerous cases that the mere statutory exclusion from invested capital of the value of assets used in a business does not entitle a taxpayer to relief under the provisions of section 328. See *1639 , and subsequent cases. While the statute does not specifically exclude the appreciated value of tangible property, it purposely makes no provision for its inclusion in invested capital In most of the cases where we have allowed special assessment on account of the exclusion from invested capital of the value of assets, the assets in question were in the nature of patents, secret processes, or valuable contracts upon which the life of the business depended and which were the chief source of income. ; ; .
*657 The petitioner relies upon . The facts in that case are strikingly similar to the facts in the instant case, the alleged abnormality in both instances being the result of the exclusion from invested capital of the appreciated value over cost of coal lands. Upon a careful consideration of that case we are convinced that it is wrong in principle*1640 in so far as it recognizes as an abnormality, affording grounds for special assessment, the exclusion from invested capital of the appreciated value of assets used in the business. We find no other cases where the Board has adopted this view. Certainly we can not say in the instant case that such an abnormality existed when there is no evidence whatever that the same conditions did not obtain throughout the entire coal industry. See .
The evidence before us does not show to what extent the petitioner's capital or income was affected by the labor and equipment furnished to it without cost by the Greer Steel Company for a period in 1920, nor does the evidence show the value of the coal and electric current which the petitioner furnished to the Steel Company without cost during this same period. The exchange may have been equally beneficial to both companies.
The fact that the petitioner was able to save $200 an oven in the construction of 194 of its coke ovens does not indicate such an abnormality as would entitle the petitioner to special assessment relief. The extent of the resulting undercapitalization claimed is*1641 not of great significance when compared with the petitioner's total invested capital as determined by the respondent of approximately $500,000.
The petitioner is not entitled to have its profits tax computed under the provisions of section 328.
Reviewed by the Board.
Judgment will be entered under Rule 50.
MURDOCK dissents.