C. J. Tower & Sons v. United States

• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Writing for the Court: Cline
• Citation: C. J. Tower & Sons v. United States, 19 Cust. Ct. 12 (Cust. Ct. 1947)
• Decision Date: 11 July 1947
• Docket Number: C. D. 1060.
• Parties: C. J. TOWER & SONS <I>v.</I> UNITED STATES.

Page 12

19 Cust. Ct. 12

C. J. TOWER & SONS

v. UNITED STATES.

C. D. 1060.

United States Customs Court, Third Division.

Decided July 11, 1947.

Barnes, Richardson & Colburn (Joseph Schwartz of counsel) for the plaintiff.

Paul P. Rao, Assistant Attorney General (Howard L. Harawitz, special attorney), for the defendant.

Before CLINE and EKWALL, Judges

CLINE, Judge:

This is a protest arising at the port of Buffalo against the collector's assessment of duty at the rate of 50 per centum ad valorem under paragraph 774 of the Tariff Act of 1930 on certain shipments of fresh rhubarb imported from Canada. The protest claims that the merchandise is properly dutiable at 35 per centum under paragraph 752, or free of duty under paragraph 1722, or dutiable at 10 per centum under paragraph 1558. Plaintiff relies chiefly, however, on paragraph 752.

The competing provisions of the tariff act are as follows:

PAR. 774. Vegetables in their natural state: * * * all other, not specially provided for, 50 per centum ad valorem: * * *

PAR. 752. Fruits in their natural state * * * and not specially provided for * * * 35 per centum ad valorem; * * *

At the trial Louis Muchnik, proprietor of the exporting company, testified that the merchandise herein consisted of fresh rhubarb as pulled from the ground but with the tops cut off; that the root of the plant was left in the ground; that he had eaten rhubarb pie in restaurants, stewed rhubarb dessert at home, and rhubarb with cream for breakfast; that he had never eaten it as a side dish with poultry; and that he considered rhubarb pie a fruit pie since it was made like apple pie or peach pie.

On cross-examination he stated that he agreed with the following portion of a definition of "fruit" taken from Funk & Wagnalls New Standard Dictionary:

A vegetable, in the popular sense, is any part of a herbaceous plant commonly used for culinary purposes, and may consist of the root, as in the beet and turnip: the stem, as in the asparagus, celery, and rhubarb.

However, he disagreed with a statement in the Encyclopaedia Britannica that "rhubarb" is a name applied to a vegetable. He agreed with that part of a definition in the Standard Cyclopaedia of Horticulture, by L. H. Bailey, describing rhubarb as leaf-stalks which are used for sauces and pies.

George R. Bewley of the Lockport Canning Co. testified that he had been familiar with the growing of rhubarb for 20 years; that he had eaten rhubarb both as sauce and in pie and in rhubarb-strawberry pie; that he had eaten it as a sauce after his main meal but never with the main course; that he disagreed with the above-mentioned definitions which were read to him; and that he had eaten custard pie, chocolate pie, and squash pie as dessert, but would not call those items fruit.

Defendant called Edward Cohen, examiner at Buffalo. He testified that he was familiar with rhubarb; that he had eaten it mostly in the form of a stew or a sauce, more often with his meal than as dessert; that he had seen other people eat it as a side dish with their main meal; and that in his experience that use dominates over its use in pie.

The only issue in this case is whether rhubarb is to be classified as a fruit or a vegetable under the tariff act. Since there has been no proof of commercial designation, the common meaning of the terms controls. In determining the common meaning, the court may accept or reject testimony as to such meaning and may consult dictionaries and written authorities. United States v. Moscini, 19 C. C. P. A. 144, T. D. 45261; United States v. John B. Stetson Co., 21 C. C. P. A. 3, T. D. 46319; Absorbo Beer Pad Co., Inc. v. United States, 30 C. C. P. A. 24, C. A. D. 209; United States v. Gallagher & Ascher Co., 34 C. C. P. A. 172, C. A. D. 361. In the leading case of Nix v. Hedden, 149 U. S. 304, it was held that in finding the ordinary meaning of the words "fruits" and "vegetables," dictionary definitions might be admitted, not as evidence, but as aids to the understanding of the court.

Funk & Wagnalls New Standard Dictionary contains the following statements under the definition of "fruit":

* * * a fruit is now generally understood to be the fleshy and juicy product of some plant, usually tree or shrub (and nearly always containing the seed), which, when ripe, is edible without cooking, and adapted for use as a dessert rather than as a salad.

* * * A vegetable, in the popular sense, is any part of a herbaceous plant commonly used for culinary purposes, and may consist of the root, as in the beet and turnip; the stem, as in the asparagus, celery, and rhubarb (or pie-plant); a tuber, or underground stem, as in the potato; the foliage, as in cabbage and spinach; or of that which is botanically the fruit, as in the tomato, bean, pea, and eggplant. * * *

The Encyclopaedia Britannica states that the name "rhubarb" is applied both to a drug and a vegetable. The New International Encyclopaedia lists "rhubarb" and also "watermelon" under "vegetables"; but watermelons are usually considered fruit.

In Webster's New International Dictionary (1936 ed.) the following definition of "fruit" appears:

2. The edible, more or less succulent, product of a perennial or woody plant, consisting of the ripened seeds and adjacent tissues, or of the latter alone. In popular usage there is no exact distinction between a fruit and a vegetable, except where the latter consists of the stem, leaves, or root of the plant. Thus the apple, pear, orange, lemon, peach, plum, grape, banana, persimmon, pineapple, and most berries are generally recognized as fruits; the pea, bean, pumpkin, squash, eggplant, cucumber, etc., are vegetables; while the tomato, melon, and rhubarb are variously regarded. See def. 8, below. Cf. VEGETABLE.

In the 1933 edition of the same work it is stated that:

Fruit is occasionally applied to certain other vegetable structures of pronounced flavor eaten as a sauce or dessert, as the stalks of rhubarb.

The Government refers to certain testimony and briefs submitted to the Committee on Ways and Means of the House of Representatives, 70th Congress, 2d Session, which was preparing the legislation which became the Tariff Act of 1930. "Rhubarb" was referred to therein as a vegetable and a duty of 3 cents per pound was requested for it under the vegetable paragraph....