(C. D. 283)

#### Foote Gear Works, Inc. *v.*United States

United States Customs Court, Second Division

(Decided February 15, 1940.)

*G. W. R. Wallace; Barnes, Richardson & Colburn (Joseph Schwartz*of counsel), for the plaintiff.

*Webster J. Oliver,*Assistant Attorney General *(Samuel D. Spector,*special attorney) , for the defendant.

Before Tilson, Kincheloe, and Dallingeb, Judges

Dalmnger, Judge:

This is a suit against the United States, arising at the port of Chicago, brought to recover certain customs duties alleged to have been improperly exacted on a particular article invoiced as “1 No. 10 Worm Grinding machine complete with Motor Drive, Contactor gear, and push button control.” Duty was levied thereon at the rate of 40 per centum ad valorem under the provision in paragraph 372 of the Tariff Act of 1930 for “machines for cutting .or hobbing gears.” It is claimed that the mechanism is properly dutiable at the rate of 27K per centum ad valorem under the same paragraph as a machine not specially provided for, or, alternatively, at the rate of 35 per centum ad valorem under paragraph 353 of said act as an article having as an essential feature an electrical element or device.

*54The plaintiff offered in evidence the testimony of Gunner E. Gunder-son, supervising engineer in charge of the manufacture and sale of all of the products of the plaintiff-corporation. He testified in part as follows:

> Q. You have been in the gear and worm business and related articles since 1910, is that correct? — A. Yes, sir.

> Q. Do you know what a gear is? — A. I do.

> Judge Keefe. Describe a gear.

> By Mr. Schwartz:

> Q. Yes, will you describe a gear? — A. A gear is a wheel with cogs or teeth on its segments or sometimes a ring with teeth or cogs on the inside of a ring.

> Q. Are there various kinds of gears? — A. Yes, there are.

> Q. Is there such a thing as a worm gear? — A. There is.

> Q. What is a worm gear? — A. A gear with teeth on the segments driven by a worm.

> *'Jfi*i{i * * ‡

> Q. Is it the turning of the worm which makes the gear turn? — A. Yes.

At this point a sample of a worm gear was introduced in evidence as Illustrative Exhibit A. There was also admitted as Illustrative Exhibit B a sample of a worm used to drive a worm gear.

The witness then continued his testimony in part as follows:

> Q. Mr. Gunderson, I show you the invoice in the case at bar, and ask you whether you are familiar with the article described on that invoice, namely “1 No. 10 Worm Grinding Machine”? — A.- Yes; I am familiar with it, and I recognize everything excepting those red lettering entries.

> Q. By that do you mean you disregard the appraiser’s report on the invoice? — ■ A. I have seen that paper. (The witness refers to the words in red ink on the face of the invoice “machine for cutting gears — 372—40 *% * ***.”)

> sj? # *%*sfc ‡ #

> Q. Did you see that machine when it was installed in your plant? — A. Yes; I did.

> 

> Q. Have you seen it in operation? — A. Yes; I have.

> 

> Q. Now will you please describe the machine and how it operates, and what it does? — A. This machine is designed to grind a worm. The worm is first cut in a separate machine called the “thread milling machine,” then the worm is ground for cutting, sometimes after hardening, sometimes before, to produce a smooth surface on this worm. This gear does not cut, no teeth, it just smoothens up. The teeth, they are cut in a different type of equipment.

> Judge Keefe. In other words you mean by this, this machine is for the purpose of grinding some other notches that are made in another machine?

> The Witness. Yes, sir; the worm is made in another machine, and this machine is made to smoothen up by grinding the cut produced by another machine.

> 

> Q. Now what motive power runs the machine? — A. We have electric motive power on both the grinding wheel, and in the operation of the machine, but it can be driven by electric motor or belts, through pulleys.

> 

> *55Q. Now aside from the motors does the machine have any other electrical equipment? — A. Just the starting buttons, and starting and stopping and control of this motor.

> Q. Would it be possible to operate it without that starting button? — A. Through belts by shifting of belts over a noose in a type of pulley.

> Judge Keefe. In other words it might be operated through belts operated by steam, or driven by steam?

> The Witness. Yes, sir.

> By Mr. Schwartz:

> Q. Have you ever used this machine to grind anything other than a worm? — A. A screw and.a worm has the same definition.

> Q. Have you used it to grind screws? — A. Yes, sir; we use it a great deal for grinding screws.

> Q. Have you ever used it in any way on gears? — A. It could not be used.

> Q. My question is: Could it be used on gears? — A. No. We bought this machine new, and never used it on gears.

On cross-examination the witness testified, in part as follows:

> X Q. And in order to change this machine from electric power to steam power, you would have to change the construction of the machine? — A. In place of the motor, put a belt on the shaft.

> X Q. Wouldn’t the change have to indicate some construction of the machine?— A. No; that would not.

> * * * * * # ♦

> X Q. Do you know what a gear is? — A. Yes, sir.

> X Q. Isn’t a gear anything that meshes? — A. A gear is two or more wheels with teeth or cog wheels, used for transmitting motion or reversing motion or the reducing of speeds.

> 

> X Q. So when you testified this is a worm gear by itself-

> Mr. Schwartz. What do you mean by “this”?

> Mr. Spector. Illustrative Exhibit A, do you mean this is one of the parts of the worm?

> The Witness. No; this is the worm gear.

> By Mr. Spector:

> X Q. Isn’t it a worm wheel? — A. It is a worm wheel.

> X Q. And this worm wheel with Illustrative Exhibit B, provided they mesh properly would constitute a worm gear, is that correct? — A. No, it would constitute a worm and a worm gear. They are two separate items entire'.y.

> X Q. Well according to your definition of a gear, which you stated was anything that meshes properly, what other part is necessary to Illustrative Exhibit A, to complete the article as a gear? — A. No other part.

> X Q. Can it run by itself? — A. No.

> X Q. Can it be geared by itself? — A. No.

> X Q. It would require some other part to complete it as a gear? — A. Not to complete it as a gear, but to complete the motion to transmit motion in another part.

> * * * * * sit *

> X Q. So when this Illustrative Exhibit B is manufactured to mesh properly with Illustrative Exhibit A, then you have a complete gear? — -A. You have a complete worm gear and worm.

*56The witness then testified that, in addition to worm gears, there were various other kinds of gears, such as bevel gears, spur gears, and internal gears.

The witness then testified in part as follows:

> X Q. * * * Now you said the machine does not cut the threads? — A. It does not cut threads.

> X Q. What does it do? — A. Grinds threads.

> X Q. Does it change the condition of the threads? — -A. It polishes, and smoothens.

> * * * * * * ***

> X Q. It does not shape the threads in any way? — A. No.

> # # * * * * *

> X Q. And the worm wheel which is made must fit into the meshes of these threads, is that right? — A. Yes.

> X Q. And as this shaft rotates and the threads fit, the wheel turns? — A. That is right.

> X Q. So this shaft, Illustrative Exhibit B, is an essential part to the operation of a worm gear? — A. Yes, it is.

On redirect examination the witness testified as follows:

> R. Q. Do you know what is meant by the term “hobbing a gear”? — A. Yes.

> R. Q. What is meant by that? — A. Hobbing is a process of cutting teeth into a gear.

> R. Q. Is the machine in the case at bar used for hobbing gears? — A. No; it cannot be used for hobbing gears.

The Government offered in evidence the testimony of J. J. Trefz, a qualified chemical engineer, who testified in part asfollows:

> Q. Just define the word “gear” for us. — A. A gear is simply a wheel that has teeth, either straight or at various angles or various shapes. A gear can have any type of tooth it wants.

> Q. Is á gear composed of one part, two parts, or many parts? — A. A gear?

> Q. Yes. — A. One part.

> * ***** *

> Q. Do you know what a worm gear is? — A. Yes, sir.

The witness was then shown an illustration of page 112 of a catalog, No. 71, published by W. A. Jones Foundry and Machine Co., Chicago, Ill., showing, under the heading “Cut Worm Gears,” an illustration of a thread milling worm, which page was admitted in evidence as Illustrative Exhibit C. The witness was then asked if that picture illustrated cut worm gears. His answer was that it was a worm drive. The witness then testified in part as follows:

> By Mr. Spbctob:

> Q. Now Mr. Trefz, is it essential for a complete gear to be composed of two parts? — A. A complete gear.

> Q. Or set of gears? — A. A set of gears must have pinion parts meshing.

> Q. And the threads must be cut accordingly? — A. Yes, sir.

> * * ‡ * * ‡ ‡

> Q. And the word “gear” implies that it is a mobile object? — A. Yes, one gear is simply a cog wheel, or whatever you want to call it.

> *57Q. And a set of gears is what? — A. A set of gears is where the teeth are out and ground on the same pitch line and the gears roll just the same as traction wheels.

> *******

> Q. Will you describe the meaning for the term “worm”? — A. Well, I suppose it came from the old type of worm turning. It is really a cylinder with the threads cut and continuous lead. * * *

> Q. Is there any difference between'a worm a worm gear? — A. Yes.

> Q. There is? — A. Yes.

> Q. Will you describe the difference? — A. In a worm itself, the continuous teeth are cut in one line with the same pitch line, on the same pitch with which it must engage another gear. In cutting the gear, which we call the gear, the cut goes right straight through, and each tooth is cut out independent of the other, whereas this is one tooth wound around.

On cross-examination the witness testified in part as follows:

> X Q. Isn’t it a fact a worm gear is a type of worm gear which is driven by a worm? — A. Yes.

> * * * * **** #

> X Q. Therefore Illustrative Exhibit A, which I show you is a worm gear, is that right?- — -A. One of the types of worm gears. There are several of them, shaped with the teeth.

> X Q. Now I show you Illustrative Exhibit C, which is a photograph and ask you whether or not that is a worm drive? — A. That is what is called a worm drive.

> ***‡ * ifc ‡ * *

> X Q. Is there any difference between a worm wheel and a worm gear? — A. Yes.

> X Q. What is the difference? — A. The worm wheel is the driving power which rotates the worm gear.

> ‡ ’ **** # * *

> X Q. Will you please look in this book in which Illustrative Exhibit C is contained, and tell me whether there are any illustrations of worms in that book or worm drives? Well, if you can’t find it at the moment, I won’t press it. — A. I was just looking at this thing here. This is a worm, driven by some other mechanism.

> X Q. Will you take my word for it, that it is page 112, is that correct?- — A.Yes, sir.

Upon this record we find the following facts:

1. That a gear is a wheel with cogs or teeth on its segments, or sometimes a ring with teeth or cogs on the inside thereof, as represented by Exhibit 1.

2. That a worm is a revolving screw the threads of which are geared with the teeth of a worm wheel or worm gear.

3. That a worm gear (represented by Exhibit 1) is a gear driven by a worm.

4. That a gear and worm are separate entities neither one being a part of the other.

5. That a worm-grinding machine does not cut or hob gears.

6. That the latter machine merely grinds and smoothens worms which have been previously cut on another and different machine.

7. That said worm-grinding machine is a mechanical contrivance which utilizes energy or force and is employed in the transmission of motion.

*588. That the imported machine can, without appreciable change, be operated by power other than electricity.

9. That the imported mechanism is operated by other than hand power and employs a tool for work on metal.

Upon the above-established facts it is evident that the mechanism at bar is not a machine for cutting or hobbing gears, as classified by the collector. Nor is it an article having as an essential feature an electrical element or device within the meaning of paragraph 353 of the Tariff Act of 1930, as alleged by the plaintiff. But it is a machine within the statutory understanding of that term as judicially defined by this court and the United States Court of Customs and Patent Appeals. However, while it is a machine it also employs a tool, to wit, a worm, for work upon metal, and since it is operated by other than hand power it falls squarely within the congressional definition of what constitutes a machine tool as thus expressed in said paragraph 372: “any machine operated by other than hand power which employs a tool for work upon metal.” Therefore, we hold as a matter of law that the machine at bar is properly dutiable at the rate of 30 per centum ad valorem under the specific provision in said paragraph 372 for machine tools, as alleged by the plaintiff. That claim is therefore sustained; but as to all other merchandise the claims are overruled. Judgment will be rendered accordingly.