United States Customs Court, First Division Protest 503042-G against the decision of the collector of customs at the port of Seattle [Judgment for defendant.] (Decided October 18, 1933) Sharretts & Hillis (Samuel Hendel of counsel) for the plaintiffs. Charles D. Lawrence, Assistant Attorney General (Marcus Higginbotham, Jr., special attorney), for the United States. Before MCCLELLAND, SULLIVAN, and BROWN, Judges SULLIVAN, Judge: The invoice description of the merchandise in question is "Child's toilet set." Two items are involved in this protest, viz, K/107 and K/108. K/108 is represented by exhibit 1, and K/107 by exhibit 2 for identification. Counsel for both sides have stipulated "that the sample marked K/107 and also exhibit 2 for identification, is a correct and representative sample of the merchandise appearing on the invoice under number K/107." They further stipulated that such exhibit "may be admitted in evidence and marked exhibit 2." * * * Seven toilet articles in miniature are enclosed in the cardboard box marked exhibit 1, viz, a handled hairbrush, a military hairbrush, a clothing brush, a hat brush, a comb, a mirror, and a pin box. The brushes and the comb are backed by a silvery metal, stated to be antimony; the pin box is entirely of this metal, as is the metal portion of the tiny hand mirror, which is composed of this metal and a round mirror about 14 inches in diameter. Exhibit 2 is a smaller box and contains but three of these items, viz, the hairbrush, the comb, and the mirror. The comb in exhibit 1 is slightly under 3 inches in length; the hand mirror about 41⁄2 inches; the hairbrush about 41⁄2 inches in length; the pin box about 11⁄2 inches in diameter; the so-called military hairbrush about 21⁄2 inches in length; and the clothing and hat brush a little over 3 inches in length. The articles in exhibit 2 are slightly smaller. Each of these sets was classified by the collector as a toy, or "an article chiefly used for the amusement of children", and he assessed duty thereon as such at 70 per centum ad valorem under the provisions of paragraph 1513 of the Tariff Act of 1930. Plaintiffs stated at the opening of the trial: We claim either that the articles comprising the toilet sets are separately dutiable under the various provisions for separate articles, or that the set is dutiable as an entirety, according to the way that the component material of chief value is dutiable. The claims in the protest, either originally or made by amendment thereto, are that the merchandise is dutiable at 65 per centum ad valorem under paragraph 397, at 1 cent each and 25 per centum under paragraph 1537, or 60 per centum under paragraph 31, or 50 per centum under paragraph 230, or 60 or 50 per centum under paragraph 1506, at 45 per centum under paragraph 397, or at 1 cent each and 50 per centum ad valorem under paragraph 1506 of said act. Is this merchandise classifiable as a toy or an article chiefly used for the amusement of children? Proof is necessary on the part of the plaintiffs to overcome the presumption arising from the collector's decision that this merchandise is chiefly used for the amusement of children. Such proof must establish a chief use for this merchandise otherwise than for the amusement of children. On this point the testimony of plaintiff's witness Mooney is as follows: I know myself what they use them for. Q. Will you please explain how the various pieces in the set, exhibit 1, are used? Take one at a time. -A. This is used to brush a child's hair with. * * * It is a hairbrush. The little box is used for the little baby beauty pin-safety pins; the comb for its hair, and the little clothes brush to brush its coat collar and its coat off with; and the hat brush is to brush the baby's hat, and it has another little military hair brush. It has a mirror, and the child can use that, if it is old enough, to brush its own hair. * * * * * Q. Miss Mooney, how old were the children that you saw the set being used on or by? *-A. About five or six years. I have seen the mother use them on the baby's hair, and then I have seen the children, when they get four or five years old, use them themselves. Q. Have you ever seen a child play with a set like exhibit 1?-A. No. Q. The uses you have testified to, are they the only uses you have seen the set applied to?-A. Yes, sir. The witness then testified as to exhibit 2 for identification that the only difference between it and exhibit 1 is that it has fewer pieces. An inspection of exhibit 2 confirms this statement, except that the pieces in the set are a trifle smaller than those in exhibit 1. The difference in size, however, is so trifling as to be practically nil. On cross-examination it developed that this witness had seen exhibit 1 used in the house of a friend in Orange, N.J., by a little girl about six or seven years of age; also by a friend in Brooklyn, who had two children about three and a half and two years of age, respectively, as to which she testified: "I think the mother used the set on those two children." Those were the only instances where she saw exhibit 1 used. On redirect examination, however, she testified, "I have seen children for many years use these sets", and that such use was for practical purposes, not for amusement. She did not specify the particular occasions or where she had seen these used for many years, and according to her testimony the only particular instances where she had seen these sets used were the two she previously mentioned in Orange, N.J., and in Brooklyn. Defendant's witness Caldwell testified he had seen merchandise like exhibit 1 and exhibit 2 for identification in use. Such merchandise he testified was similar to the exhibits, and he described it as follows: Made up in toy size, for toy accessories. A child has a little bureau, and they buy these to put on the bureau, to look just like what the mother would have. Referring to the hairbrush he testified in response to the court's question as to its use that a child would use it "Just to brush the doll's hair." The sets he had seen used he testified were different from exhibits 1 and 2 in that "some are with wooden backs; others are made in celluloid"; that "It is a hairbrush toy. You could not call it anything else." He further testified as to the difference between the articles he was testifying about and exhibits 1 and 2 that "These are a little more attractive and fancy"; that "The only difference is on the fancy back", referring to the brushes; also that his sets were not the exact size of exhibits 1 and 2, that "there might be a slight variation"; that such articles were used "By children as toys, playing with dolls"; that he had seen such use "For possibly at least eight years or more" in homes he had visited, and he had "given toys similar to people's children", and had seen them used by children "anywheres from five to ten or twelve years of age." The witness testified that the hairbrush in exhibit 1 could not be used successfully for brushing the hair "because these bristles are perfectly even", but the brushes in the set could be used for brushing the clothes or a hat, and the pin box can be used for holding "any material which you care to place in it." Defendant's witness Schondelmeier testified that at one time he bought articles of the character of exhibits 1 and 2 "at wholesale and sold them at retail"; that he bought them as doll accessories and had seen them in use. He described the difference between exhibits 1 and 2 and the articles about which he was testifying as follows: * * * * * * Instead of the bristles being set in a wooden base they were set in either a metal base or celluloid, and then some in solid wooden bases without this adornment on it. That is the miniature hairbrush. The same holds good on this hand brush and the clothes brush and the hat brush. The same holds good on the comb. The combs, some of them were made of wire and others were made of celluloid. The sizes varied slightly, a little larger or smaller, according to what the manufacturer put out, and what he thought was the proper thing for the set that he was selling. All manufacturers did not have the same size. * * * As to the sets he was testifying to, or his own sets, he testified he had seen them used in his own home, his children's homes, and in friends' homes by children of from five to eleven years of age as follows: They were dressing their dolls' hair with them, and brushing the dolls' clothes, and playing with them just the same as a mother would. They played with the dolls as their children. He testified he sold the sets he referred to in 1923, but had seen them in use "within the past month or two." Mr. Schondelmeier has eight grandchildren, seven girls and one boy, and had four children, now adults. His familarity with children and their ways is therefore considerable, and his testimony in regard to similar sets to exhibits 1 and 2 is entitled to considerable weight. It is evident that his sets were miniature articles and in their size were similar to these exhibits. It seems to us their finish or material would not affect their use. The miniature size of these articles tends to confirm his testimony that these articles are not capable of real practical use. Asked about the comb in these sets Mr. Schondelmeier testified: I would not attempt to comb a child's hair with that comb. There is not enough comb there to do it. The miniature size of the combs in exhibits 1 and 2 confirms this testimony. They are considerably smaller than the average pocket comb, being only about 3 inches in length by a trifle over a half inch in width. The teeth in the comb are about three-eighths inch in length. We cannot conceive of this comb being used practically. Referring to the so-called military hairbrush and the other hairbrush in exhibit 1, the witness testified: The bristles are lying down. To my mind there is not enough strength there to use it for a hairbrush. That is, as a children's hairbrush. Miss Mooney, called in rebuttal by the plaintiffs, used a comb and hairbrush from these exhibits on her hair, and plaintiffs' counsel asked that it be noted that the witness used these articles on her hair "with apparent success." However, she testified: * * * The brush that I ordinarily use for my hair is about the same type of brush. It is a regular lady's brush. It is a larger brush. This is not supposed to be a lady's brush. It is a child's brush, and gets pretty nearly the same results, only I require a larger brush because I am a grown lady. On cross-examination the witness testified she would not buy a comb of that size to comb her hair. On counsel calling her attention to the fact that when she combed and brushed her hair on the witness stand she followed up the comb and brush with her hand, she testified: "Naturally; you would do that with a larger brush", and that she would do so if she were using a larger brush of her own. As to the little mirror she testified: I can see how to comb my hair with this (the witness uses the mirror, looking into it). You can see your whole face in this. We have tested the sample and find the mirror is too small to reflect the whole face. Only a portion of the face is reflected therein, even when it is held at arm's length. In our opinion plaintiffs have not established that the chief use of this merchandise is practical. The testimony of plaintiffs' witness as to the use of this merchandise practically was based on her knowledge of such use in two homes. On the other hand, while defendant's witness Schondelmeier's testimony was based on the use as toys of similar merchandise, and such merchandise was of a different finish and material from exhibits 1 and 2, yet his merchandise was of a miniature type, and of the same character as these exhibits. It is reasonable to suppose, therefore, that the use of both types of merchandise would be the same. But however that may be, even if we give but little weight to his testimony as to the use of similar merchandise, Mr. Schondelmeier is the father of a large family, and he has evidently observed the home life of those children, their play, and the toys used by them. It seems to us Mr. Schondelmeier has qualified not only as an expert on children's play and amusements, but also as an expert on toys. His opinion as to the comb and hairbrushes in exhibits 1 and 2, coupled with our examination of the samples and their miniature, even tiny, size strengthens our opinion that these articles are toys. Miss Mooney's testimony as to the mirror, also, is contradicted by our examination of the samples. Only portions of the face can be observed in it. Only in emergencies, with no other mirror at hand, would it be used practically. For that matter a piece of a broken mirror too small for ordinary everyday practical use can also be used at times in an emergency when a full-sized mirror is not at hand. See on miniature mirrors the opinion of the appellate court in United States v. Lisk, 17 C.C.P.A. 234, T.D. 43670. We feel the weight of the testimony sustains the contention of defendant that these articles are toys. The samples sustain this conclusion. It was said in United States v. Halle, 20 C.C.P.A. 219, T.D. 45995 * A sample of the merchandise in issue, in a case of this character, is a very potent witness. * * * We feel the collector was correct in his classification, and overrule the protest. Judgment for defendant. (T.D. 46691) Leathers, boarded Leathers provided for in paragraph 1530, slightly boarded so as to render them softer and more pliable and thus more desirable for use in the manufacture of shoes, not dutiable at the rate of 30 percent ad valorem as grained leathers under subparagraph (d), paragraph 1530, Tariff Act of 1930 TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, COLLECTOR OF CUSTOMS, New York. Washington, D.C. SIR: The Bureau duly received your letters of July 7 and August 26, 1933, relative to the proper tariff classification of certain of the |