
    (356 F. 2d 154)
    ATLANTIC COAST LINE RAILROAD v. THE UNITED STATES THE ATCHISON, TOPEKA AND SANTE FE RAILWAY COMPANY v. THE UNITED STATES
    No. 194-63
    No. 243-63
    [DECIDED FEBRUARY 18, 1966]
    
      
      Robert R. Faulkner, attorney of record, for plaintiff, Atlantic Coast Line Eailroad Company. James E. Williams, of counsel.
    
      Lawrence Cake, attorney of record, for plaintiff, The Atchi-son, Topeka and Santa Fe Eailway Company. Raymond A. Negus, of counsel.
    
      John G. Ranney, with whom was Assistant Attorney General John W. Douglas, for defendant.
    Before Cowen, Chief Judge, LakamoRe, Dttreee, Davis and Collins, Judges. ,
   Pee CuRiAM:

These cases were referred pursuant tó Pule 57(a) to Trial Commissioner Lloyd Fletcher with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on November 1, 1965. On December 1, 1965, defendant filed a notice of intention to except to the report of the commissioner. Thereafter, on December 7, 1965, defendant filed a motion to withdraw its notice of intention to except to the commissioner’s report, together with its consent to entry of judgment on the basis of the commissioner’s report in these cases. Plaintiffs have filed no notice of intention to except to the commissioner’s report and the time for so filing pursuant to the Rules of the court has expired. Since the court agrees with the commissioner’s findings, his opinion, and his recommendation for conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in these cases and defendant’s motion filed December 7, 1965, is granted. Plaintiff Atlantic Coast Line Railroad Company is entitled to recover in the sum of $1,546.26 in No. 194-63 and plaintiff The Atchison, Topeka and Santa Fe Railway Company is entitled to recover in the sum of $3,148.61 in No. 243-63 and judgments are entered for plaintiffs in these sums.

Opinion oe Commissioner

Fletcher, Commissioner:

These actions require the court to determine the proper classification of an ingenious and versatile military vehicle which has acquired the picturesque nickname of “Mechanical Mule.”

During the period 1958 through 1960, plaintiffs as final and delivering carriers performed transportation services for the defendant by transporting numerous carload shipments of these vehicles between points within the United States. Plaintiffs contend that Mechanical Mules should be classified under Item 93340 of Uniform Freight Classification No. 5 as “freight automobiles.” Defendant, on the other hand, contends that' they should be classified by .analogy under Item 93440 as “Trucks or tractors, or- trucks and tractors combined, platform or warehouse, noibn, or lift trucks., loose or in packages.” The rates for transportation under the two classifications are different, the rate for the freight automobile classification being the higher.

During the years here involved, the Mechanical Mule was known technically as the “Carrier, Light Weapons, Infantry, y2 Ton, 4x4, M274.” In later years, following some improvements it came to be known under the technical designation of “Truck Platform Utility, y2 Ton, 4x4, M274 and M274A1.” It is a special-purpose vehicle comprising, essentially a magnesium platform mounted on two axles and four wheels powered by a four-cylinder, air-cooled engine which is mounted under the platform at the rear. The carrier has four-wheel drive with three speeds forward and one reverse. A quick change mechanism allows either two or four-wheel steer to be used, as desired, resulting in a turning radius of ten feet. A handrail is attached to the platform and can be raised to accommodate payload or lowered for shipping and storage. The driver’s seat, steering apparatus, and footcage may be detached and stowed beneath the platform when the vehicle is to be towed if disabled, and also for shipping and storage purposes. The vehicle can be turned on either side or upside down by manpower for ease of maintenance or repair operations. The steering wheel can be moved forward and lowered so that with the vehicle moving in reverse the operator, following on foot, can drive from a standing or crouched position. Fording in water up to the bottom of the accessory drive pulley is safe provided low speed and caution are used when entering the water.

The vehicle measures approximately 49 inches wide by 119 inches long by 27^4 inches high at the platform. When shipped, the steering apparatus is removed along with the seat and footcage which are stowed underneath the platform. This reduces the shipping length to 103 inches. The Mechanical Mule weighs approximately 900 pounds and can carry a payload of 1,000 pounds. The electrical system consists of an ignition switch, magneto assembly, and spark plugs. Lights are not provided. The engine is started by a hand-pull type starter similar to that of a power lawn mower. There is no battery, and the maximum speed is 25 miles per hour.

Early in 1952 the Army had decided there was a need for an unconventional wheeled vehicle with high cross-country mobility and maneuverability to provide a transportation facility for the front-line infantryman’s weapons, ammunition, and other combat equipment. It was time, so the Army felt, for the infantryman to'stop being a “walking warehouse.” Existing % and %-ton weapons carriers, comprising truck and trailer combinations, were not the optimum vehicles for this purpose.

Accordingly, Willys Motors, Inc. was given a contract to design and develop 'five M274 prototypes. Over a period of several years, and following extensive testing, an acceptable vehicle was developed and put into general production.

After a study of the technical manuals, brochures, and photographs of this new military vehicle, the Classification Committees for the railroads concluded that, for transportation purposes, it represented merely another step in the evolution of the weapons carrier which had always been classified as a freight automobile. On this theory, they classified the Mechanical Mule as a freight automobile under the Uniform Freight Classification and rated it accordingly. The Government, as shipper of the vehicle, disagreed and claimed that the Mechanical Mule more closely resembled a platform or warehouse truck insofar as its transportation characteristics were concerned. In the Government’s view, the novelty of this special-purpose vehicle required the application of Rule 17, reading in pertinent part as follows:

When articles not specifically provided for * * * are offered for transportation, carriers will apply the classification provided for articles which, in their judgment, are analogous; in such cases agents must report facts to proper officer of Freight Department in order that rating applied may be verified and necessary classification provided. This rule will not apply in connection with ratings or rates published in Exceptions to the Classification or in commodity tariffs.

Having conveyed this message, the rule subsides into silence as if any remaining questions were beneath its notice, and there is left only a “delusive simplicity.” Thus, Rule 17 is not very helpful here. 'Whenever it becomes necessary to determine the proper freight classification for a commodity not indexed by its name in the Classification, a study must be made of products named therein which are similar, comparable, or “analogous.” The rule merely positions itself on the outskirts of the fundamental problem which haunts this subject. That problem, of course, involves the determination of which similarities between named produets and the wrmamed one are the most important in identifying the latter and arriving at its proper classification.

In developing the record here, both sides have displayed considerable ingenuity. The Government has made a convincing showing that in looks, size, speed, and several other visual characteristics, the. Mechanical Mule more closely resembles a platform or warehouse truck than any other named vehicle. The carriers, on the other hand, have made an equally convincing showing that in function and usage the Mechanical Mule more closely resembles a freight automobile than any other named vehicle.

The identification of such a chameleon-hued object quite obviously involves the question of which characteristic is most important to a classification determination. This court has previously answered that question in Union Pacific Railroad Co. v. United States, 117 Ct. Cl. 534, 91 F. Supp. 762 (1950). There the court addressed its attention to the Mechanical Mule’s older and more celebrated sister, the Jeep. The case turned on whether the Jeep was primarily a passenger or a freight vehicle. Speaking for a unanimous court, Chief Judge Jones acknowledged that the question was a difficult one because the Jeep had served many purposes and had been used extensively to haul both men and materials. Nonetheless, by examining the background of why the car was built in the first place and what need it was intended to serve, he found that its primary use was as a passenger car. Therefore, the Jeep’s proper classification was that of passenger vehicle.

The primary-use doctrine of Union Pacific, supra, thus requires close scrutiny of why the product in question was created and what it was supposed to do; its raison d'etre is critical. When the history of the Mechanical Mule is examined in this light, it is entirely clear on this record that it must be classified as a freight automobile. The evidence is overwhelming that it was conceived, created, and designed to function as a “small, lightweight infantry cross-country equipment carrier of simple design and low costs.” See finding 7, infra. Its fundamental purpose is to carry weapons and other military equipment over rough and difficult terrain in support of combat troops. The ingenious positions for its steering mechanism, its ability to travel in a variety of environments, and its generally rugged construction are all vital prerequisites, to effective military logistical support. While its appearance and construction are such that it obviously can be, and is, used as a'platform or warehouse truck, such usage, like that of the Jeep as a freight vehicle, is entirely secondary. Resort to the United States Marine Corps for a testing program on the Mechanical Mule would hardly have been necessary if the primary use was intended to be in and around warehouses, aircraft hangars, docks, and the like. . The rigorous tests conducted by’ the Marine Corps were obviously necessary, however, to prove out its usefulness as a combat weapons and supply carrier in the field.

Moreover, the Interstate Commerce Commission has pointed out that another fact entitled to great weight in determining a commodity’s identity for transportation purposes is the manufacturer’s description of the commodity for sale purposes. See Hyman-Michaels Co. v. Chicago, R.I. & P.R.R. Co., 308 I.C.C. 339, 341 (1959). Here, the manufacturer designates the Mechanical Mule simply as “The M-274, 4 x 4, i/2 Ton Weapons Carrier” and describes it as “the world’s most maneuverable cargo carrying unit.” With the single exception of its use as a platform in servicing military aircraft, all other uses for the Mechanical Mule are described in the manufacturer’s brochures as those of transporting weapons, ammunition, various military supplies, and wounded personnel.

Thus, the conclusion is inescapable that the Mechanical Mule’s primary use is that of a specialized freight vehicle. It is meant to carry weapons and other supplies for combat troops and not to perform routine chores in or around a warehouse or similar installation. Accordingly, under the rule laid down in the XJnion Pacific case, supra, the Mechanical Mule must be classified as a freight automobile. See, also, Atchison, Topeka & Santa Fe Railway Co. v. United States, 310 I.C.C. 663, 668 (1960).

Findings oe Fact

1. Plaintiff, Atlantic Coast Line Railroad Company (“Coast Line”) is a corporation organized and existing under the laws of the Commonwealth of Virginia and is a common carrier by railroad over its own lines and jointly with other common carriers by railroad.

Plaintiff, The Atchison, Topeka and Santa Fe Railroad Company (“Santa Fe”) is a corporation organized and existing under the laws of the State of Kansas and likewise is a common carrier by railroad over its own lines and jointly with other common carriers by railroad.

Since common questions of law and fact are involved in the petitions filed herein by both carriers, under order of the commissioner pursuant to Rule 47(a), the two actions have been consolidated.

2. During the period 1958 through 1960 plaintiffs as final and delivering carriers performed transportation services for defendant by transporting numerous carload shipments of freight between points in the United States. • Most of the shipments originated at Willys Motors, Inc., Toledo, Ohio, and all moved under Government bills of lading. Most of the shipments that originated at Willys Motors, Inc', were described on the Government bills of lading as “Trucks or Tractors, Platform or Warehouse (Carrier, Light Weapons Infantry, % ton, 4x4, M274).” The transit shipments moving outbound from Nebo, California were described both as “Trucks” and as “Trucks Platform noibn”. Other shipments from Edgoten, Kentucky, were described as “Freight Automobile (Carrier, It wpns, Inf, % Ton4x4, M274 w/e).” Most of the shipments moving from Willys Motors, Inc. were loaded in damage-free 50-foot 6-inch box cars and were loaded to an average of 28 vehicles to a car weighing on the average in excess of 25,000 pounds. The shipments moving from Nebo, California were crated for export and moved on flat cars.

The manufacturer of the commodity herein involved is Willys Motors, Inc., and in its brochures the commodity is described as “The M-274 4 x 4,% Ton Weapons Carrier * * * Mechanical Mule.”

3. The issue herein is the determination of the applicable transportation charges on shipments of the aforesaid Carriers, Light Weapons, Infantry, % Ton 4x4 M274. Plaintiffs contend that the commodity should be classified under Item No. 93340 of Uniform Freight Classification No. 5 as “Freight Automobiles.’ Defendant contends that the commodity should be classified by analogy under Item 93440 as “Trucks or tractors, or trucks and tractors combined, platform or warehouse, noibn, or lift trucks, loose or in packages.”

4. The parties have agreed and stipulated that Uniform Freight Classification No. 5 was applicable during the time the services herein were performed. The pertinent portions of Uniform Freight Classification No. 5 are:

DESCRIPTION OF TRANSPORTED COMMODITY*

5. The commodity here under consideration has acquired the nickname of “Mechanical Mule.” During the years here involved, it was known technically as the “Carrier, Light Weapons, Infantry, % Ton, 4x4, M274.” In later years, following some improvements, it came to be known under the technical designation of “Truck Platform Utility, 14 Ton, 4x4, M274 and M274A1.” It is a special-purpose vehicle comprising essentially a magnesium platform mounted on two axles and four wheels powered by a four-cylinder, air-cooled engine which is mounted under the platform at the rear. The carrier has four-wheel drive with three speeds forward and one reverse. A quick change mechanism allows either two or four-wheel steer to be used, as desired, resulting in a turning radius of ten feet. A handrail is attached to the platform and can be raised to accommodate payload or lowered for shipping and storage. The driver’s seat, steering apparatus, and footcage may be detached and stowed beneath the platform when the vehicle is to be towed if disabled, and also for shipping and storage purposes. The vehicle can be turned on either side or upside down by manpower for ease of maintenance or repair operations. The-steering wheel can be moved forward and lowered- so that with the vehicle moving in reverse the operator, following-on foot, can drive from a standing or crouched position. Fording in water up to the bottom of the accessory drive pulley is safe provided low speed and caution are used when entering the water.

The vehicle measures approximately 49 inches wide by" 119 inches long by 27*4 inches high -at the platform. When-shipped, the steering apparatus is removed along with the seat and footcage which are stowed underneath the platform. This reduces the shipping length to 103 inches. The Mechanical Mule weighs approximately 900 pounds and can. carry a payload of 1,000 pounds. The electrical system, consists of an ignition switch, magneto assembly, and spark-plugs. Lights are not provided. The engine is started by a hand-pull type starter similar to that of a power lawn mower. There is no battery, and the maximum speed is 25-miles per hour.

6. The primary purpose of the Mechanical Mule is to further the effectiveness of infantry troops in battlefield performance by reducing their burden and increasing their mobility. It is used in forward infantry battalion areas as a transport vehicle for crew-served weapons and ammunition, and as a general cargo vehicle for rifle companies and battalions. It has secondary use in rear areas for communications, for emergency evacuation of wounded personnel, and for hauling general light cargo.

The United States Marine Corps has extensively tested and has found the Mechanical Mule to be invaluable in mountain, desert, and amphibious operations, especially in areas heretofore nonaccessible to rubber-tired vehicles. By reason of its light weight, it is also an excellent vehicle for use in helicopter operations. It has a limited capability in jungle operations due to lack of traction but can be used hi jungle warfare as a carrier for the 106mm rifle. Miscellaneous uses for the vehicle have been developed, such as, use as a mobile field canteen, use as a platform from which to load bombs on aircraft, use in aircraft hangars where its low silhouette enables it to pass under airplane wings, and use in road blocks and ambushes where its low silhouette enables it to be camouflaged easily. In general, the Mechanical Mule has proved to be a versatile and useful military vehicle particularly under combat conditions in rough and difficult terrain.

7. In March Í952, Department of the Army Ordnance Technical Committee Minutes were issued to establish the requirement for and military characteristics of a carrier, light weight infantry weapons vehicle. The discussion on the Committee minutes states in pertinent part:

a. The objective of this project is to provide a light weapons-personnel carrier for use in forward areas by infantry, airborne infantry and other combat troops. The vehicle is to be of simple design requiring minimum of driver training and maintenance. Its cost .is to be sufficiently low that loss of vehicle would entail only a nominal financial consideration.
b. It is planned that five (5) each prototype vehicles of both wheeled and track type be provided at this time for engineering and user test.

The Research and Development Project Card, attached thereto, states:

Requirements exist for a small, lightweight infantry-cross-country equipment carrier of simple design and low cost. It should enable the supporting weapons and ammunition of infantry units to accompany and keep pace with the rifleman at foot speeds in combat. In many respects it should assume the tasks previously relinquished by the Army mule. No available military vehicle now meets these requirements.

The discussion on the Research and Development Project Card then states in pertinent part:

(a) There has long been a requirement for means of furthering the effectiveness of the infantryman * * * The proposed vehicle offers such approach by reducing his burden and increasing his mobility.
(b) The front-line infantryman * * * should not be a walking warehouse * * * The proposed vehicle_ would provide transportation for individual combat equipment in addition to weapons and ammunition.
(c) There is a requirement for an unconventional wheeled vehicle with high cross-country mobility and maneuverability for tactical use by front line combat units * * *
(d) The present %-ton truck and trailer combination is not the optimum vehicle for cross-country trans-
Eortation of infantry crew-served weapons under com-at conditions. The proposed vehicle would replace a portion of present * * * requirements for the %-ton truck-trailer combination * * * A small number of 34-ton truck-trailer combinations now used as weapons carriers would likewise be replaced * * *
(e)Primary use of this vehicle would be in forward areas. Its secondary rear area, utility would include communications, emergency evacuation of wounded and transport of general light cargo. Long distance movement by truck or rail or towing behind a truck is acceptable rather than compromise of batterfield [sic] performance. Provision for transport of weapons crews is not essential. The vehicle is not intended as a prime mover.

8. In June 1952, Willys Motors, Inc. received a contract to design, develop, and fabricate five XM274 prototypes to meet military characteristics. All pilot models were delivered to the Government by May 1954. Further testing was then conducted by various branches ■ of the military services, and deficiencies revealed thereby were corrected.

On April 26, 1956, Ordnance Technical Committee Minutes for Item 36178 were issued containing recommendations by the Subcommittee on Automotive Equipment. The Subcommittee recommended that research Project 546-09-027 for the development of the carrier, light-weight, infantry weapons be terminated, and that production of 700 of the standard type vehicles proceed. The Subcommittee also recommended that the nickname “Mechanical Mule” be assigned to the vehicle. In its discussion, the Subcommittee stated: “The new item does not duplicate any adopted type now in the Army supply system and there is no comparable item by function now in the Army supply system which is practicable for use in lieu of the proposed item.”

In June 1956, Supply Contract da 33-019-ORd 2217 was awarded to Willys Motors for the production of 700 Mechanical Mules. This was the first production contract for this new item of supply.

9. The Marine Corps Equipment Board began testing the M274 in 1958. Service testing was continued during 1958 and 1959 by units of the Fleet Marine Force to determine whether the M274 Mechanical Mule could be of use to the Marine Corps in the conduct of amphibious warfare.

The final report issued by the Marine Corps Equipment Board on September 6,1960, concluded in part:

(a) The Infantry light weapons carrier, % ton, 4x4, M274 is suitable in present configuration for Marine Corps use in the field.
ifs & # # Hi
(j) The special purpose application of the vehicle makes it inadvisable to use it as a replacement for any other vehicle but the use of the Mechanical Mule will permit a compensating reduction in other types of vehicles.
^ ❖ Hi H« *
(n) The use of the Fork Lift Adapter Kit overloads the vehicle by approximately 160%.

The Marine Corps’ tests on the tactical employment of the Mechanical Mule showed it to be a suitable tactical vehicle in mountain operations, amphibious operations, desert operations, and helicopter operations. The Second Marine Division found that the vehicle had a limited capacity in jungle operations due to lack of traction required to penetrate thick underbrush and vegetation.

CLASSIFICATION HISTORT

10. (a) In 1942, a request was directed to the Classification Committees of the railroads to determine the proper ratings or classification of various military vehicles designated as weapons carrier, 44 ton and weapons carrier, % ton. The Committee determined that the 44 ton weapons carrier should be classified under Item No. 48780 of Consolidated Freight Classification No. 15 as a freight automobile. On July 9, 1942, H. M. Tourville, Major, Field Artillery, Chief of the Freight Branch, Office of the Chief of Transportation, directed a letter to the Chairman of the three Classification Committees of the railroads, in which he stated: “It is the opinion of this office that this vehicle is properly ratable as a freight automobile.” The Classification Committees advised Major Tourville on July 14,1942, that a % ton weapons carrier was properly classified as a freight automobile, Item No. 48780, supra.

In March 1958, the New York Central Railroad Company requested the Official Classification Committee to furnish the proper rating and classification of the M274,4x4,44"Ion weapons carrier, a product of Willys Motors, Inc. The Classification Committee advised that the 44-ton. weapons carrier manufactured by Willys Motors was ratable as a freight automobile under Item No. 93340 of Uniform Freight Classification No. 4. In June 1958, the Southern Weighing and Inspection Bureau submitted to the Southern Classification Committee a draft of what later became Technical Manual TM 9-8034-10, published by the Department of the Army relating to 44 ton, 4x4, Infantry, Light Weapons Carrier M274-, and requested a classification for the vehicle described therein. The Southern Classification Committee advised the Southern Weighing and Inspection Bureau that these vehicles were properly ratable as freight automobiles. Similar inquiries from other carriers and bureaus elicited the same opinion.

’ In March and May 1963, the Chief of Classification Branch, Freight Negotiations Division, Defense Traffic Management Services and the Executive Director of the Military Traffic Management Agency in Washington, D.C. were advised that the %-ton light weapons carriers M274 were classified and rated as freight automobiles under Item No. 93840 of Uniform Freight Classification No. 5.

(b). Item No. 93440 of Uniform Freight Classification No. 5 relating to platform-or warehouse trucks was originally established in October 1911, Supplement 9 of Official Publication 37. The item was published to provide classification ratings for self-propelled vehicles that were designed primarily for use on railroad station platforms for the handling of baggage and freight. Subsequently, the article was enlarged to embrace a classification for vehicles used in storage warehouses, factories, mills, and lumber yards and later, after the evolution of the lift truck, which incorporated an elevating mechanism, the item was amended to embrace such vehicles.

CLASSIEI CATION TESTIMONY BY EXPERTS

. 11. -Plaintiffs presented as an expert witness, Mr. Elmer B. -Hull, a. classification- official and member of the Uniform Freight Classification Committee, an agency- of the railroads (including plaintiffs herein). He testified with specific reference to the Mechanical- Mule that,.after studying the technical manual and the brochures of Willys Motors, he had concluded that the Mechanical Mule was ratable, as a freight automobile under Item No. 93340 of the Uniform Freight Classification. This was also the unanimous conclusion of the Classification Committee. Mr. Hull based his testimony on his study of a technical manual, brochures describing the design, construction, and use of the vehicle, and various photographs. He concluded: * *■ that it:is a.low silhouette model of light construction powered by an internal gasoline engine designed and constructed for the purpose of transporting material, cargo; weapons,.and at times personnel cross-country over rough terrain; that it is a type of freight automobile.” Although he has seen many photographs of the Mechanical Mule, Mr. Hull has never seen the actual commodity itself, nor -has he ever seen one loaded for shipping. His opinion was not based on any actual experience of watching the commodity operate under the conditions for which it was designed. In the light of its function and characteristics, he could not classify it as a platform or warehouse truck. He believed that from a transportation standpoint, from an engineering standpoint, and from a military standpoint, the Mechanical Mule represented merely a step in the evolution of the weapons carrier and fulfilled the desire of the Armed Services to have a lighter vehicle for that purpose. He thought that essentially, so far as nomenclature and function are concerned, the Mechanical Mules are identical to the weapons carriers which earlier had been classified as “freight automobiles,” even though the earlier weapons carriers were considerably larger and heavier than Mechanical Mules.

12. Defendant presented as its expert classification witness, Mr. Kenneth D. Jenks, a civilian employee of the Department of Defense whose present position is Chief of the Freight Traffic Section of the Freight Traffic Department of the Cleveland Procurement District. He has had approximately 25 years’ experience with a railroad, private industry and the Government in the field of transportation and traffic management. His present duties include supervision of the general work of rate and classification clerks at the Cleveland Procurement District.

Mr. Jenks has been personally involved with shipments of the Mechanical Mule since its inception in 1956. He has seen the commodity prepared for loading and has witnessed the method of loading the vehicle into damage-free cars. In his opinion there was no existing freight classification for the Mechanical Mule, and he believed it was more like a warehouse or platform truck than any other vehicle. This opinion was based on his personal study of the vehicle, looking at it, obtaining its shipping measurements, and computing its transportation characteristics. He also obtained brochures of warehouse equipment, studied specifications in technical manuals and blueprints, and actually performed measurements on one platform truck known as the United Tractor Chore Boy, Model 50, although he has never seen one of those vehicles prepared for shipment. The witness drew up a comparison of the characteristics of commercial warehouse vehicles, the Mechanical Mule, and freight automobiles. This comparison, which was introduced into evidence, contains several inaccuracies, particularly in the comparison between engine systems, electrical systems, and vehicle average operating speeds. In arriving at his opinion as to the proper classification for the Mechanical Mule, Mr. Jenks gave no weight whatever to the purpose and use for which the vehicle was designed. Even if he had known that the primary purpose of the Mechanical Mule was that of being used as a weapons carrier, ammunition carrier, and general cargo carrier for troops in the field, such knowledge would have had no bearing on his determination of the proper classification.

DESCRIPTION OP PLATFORM OR WAREHOUSE TRUCKS

13. The first platform or warehouse trucks were manufactured in 1906. Originally, they were operated 'by electricity, by storage batteries, or 'by gasoline engines connected to a generator. They were designed primarily for use on railroad station platforms in the handling of baggage and freight. Subsequently, platform or warehouse trucks were developed for more extensive use around factories, warehouses, lumber yards, mills, and the like, and the gasoline internal combustion engine has now largely replaced the storage battery. Over the years, the major change in these vehicles has been the addition of various lifting mechanisms.

. 14. Descriptive brochures of a great variety of platform and warehouse trucks were received in evidence. Only two of these bear physical resemblance to the Mechanical Mule, and they may be described briefly, as follows:

• (a) The United Tractor Chore Boy platform truck is 150 inches long, 60 inches wide, and 62 inches high. It weighs 3,100 pounds and has a load capacity of 5,000 pounds. The height of the deck, or platform, is 26 inches. It is powered by a 4-cylinder, gasoline engine, with rear-wheel drive and a maximum forward speed of 24 miles per hour.

(b) The Kalamazoo Industrial platform truck K45A was designed in 1962 to solve the need of industrial plants, airlines, warehouses, terminals, fruit and produce processors, and military installations for a low silhouette, four-wheel, high capacity mechanical truck. It is powered by a 4-cylinder, gasoline engine, with rear-wheel drive and a maximum forward speed of 30 miles per hour. Its overall length is 157 inches, and the overall width is 60 inches. The height of the platform is 27% inches. It has a maximum capacity of 4,000 pounds and weighs 2,650 pounds.

It will be noted that, like the Mechanical Mule, the above-described platform trucks both have a greater carrying capacity than their own weight. Unlike the Mechanical Mule, however, these vehicles would not be able to perform the functions of a weapons and general cargo carrier under combat conditions in difficult terrain.

15. The parties have agreed and stipulated that if plaintiff, Coast Line, prevails in its theory of the proper classification that plaintiff is due the sum of $1,546.26; that if plaintiff, Santa Fe, prevails ha its theory of the proper classification, then that plaintiff is due the sum of $3,148.61; and that if defendant prevails in its theory of the proper classification, neither plaintiff is entitled to recover.'

ULTIMATE FINDINGS OF FACT

16. The article here involved is not specifically provided for in Uniform Freight Classification No. 5 either under its technical designation of Carrier, Light Weapons, "infantry, y2 Ton, 4x4, M274 or under its nickname of Mechanical Mule. '

17. The Mechanical Mule is a self-propelled vehicle and, for purposes of identification, falls somewhere under the Uniform Freight Classification heading of vehicles, motor.

18. The Mechanical Mule was designed for, and is used exclusively by, the military services.

19. The Mechanical Mule resembles a few types of civilian platform or warehouse trucks in looks, dimensions, engine size, and speed; it has secondary uses by the military services similar to the civilian uses for platform or warehouse trucks.

20. Its primary function and use, however, is ás a self-propelled carrier of weapons, ammunition, and other military cargo in aid of infantrymen operating in terrain too difficult for conventional vehicles.

21. Therefore, the Mechanical Mule is properly classified under Item 93340 of Uniform Freight Classification No. 5 as a freight automobile.

There are appended hereto, and made a part of these fidings, the following illustrations of the Mechanical Mule:

CONCLUSION 03? LiAW

Upon the foregoing findings of fact, wliicb are made a part of the judgments herein, the court concludes as a matter of law that plaintiffs are entitled to recover, and judgments are entered for them in the following amounts:

(1) Atlantic Coast Line Railroad Company, $1,546.26.

(2) The Atchison, Topeka and Santa Fe Railway Company, $3,148.61. 
      
       Pursuant to Rule 47(a), the two cases have been consolidated by order of the commissioner since they involve common questions of law and fact.
     
      
       See Isaacs, The Law and the Facts, 22 Col. L. Rey. 1 (1922).
     
      
       By contrast, the old % and % ton weapons carriers, which were classified as freight automobiles, had carrying capacities less than their empty weights.
     