
    ARTHUR W. LAVIDGE v. THE UNITED STATES
    [No. 38-56.
    Decided March 5, 1958]
    
      
      Mr. James A. Gillen for plaintiff. Messrs. Claude W'.. Dudley, Joseph M. Jones, James T. Lyon, Bernard G. Ost-mann, Robert T. Molloy, and Walter McFarland were on the briefs.
    
      Mr. Harold S. Larsen, with whom was Mr. Assistant Attorney Generad Charles K. Rice, for defendant. Messrs.. James P. Garland and Sheldon J. Qitelman were on the brief.
   Whitaker, Judge,

delivered the opinion of the court:

This suit is brought by a member of the Traffic Club of Chicago to recover the sum of $15, Federal excise taxes imposed by section 1710 of the Internal Eevenue Code of 1939,. as amended, on dues paid' by plaintiff on account of his-membership in the Traffic Club of Chicago. He insists that no taxes should have been assessed and collected because the-Traffic Club of Chicago is not a social, athletic, or sporting club or organization.

Section 1710 (a) of the Internal Eevenue Code of 1939,, as amended, levies a tax of 20 per cent on the dues or membership fees paid by a member to “any social, athletic, or-sporting club or organization.” The tax is to be paid by the member, although customarily it is paid into the-treasury of the club as a collecting agent, and by it paid to the Director of Internal Eevenue.

The Act does not define a social, athletic, or sporting club,, but section 101.24 of Treasury Eegulations 43 (1941 ed) provides in part:

The purposes and activities of a club or organization and not its name determine its character for the purpose-of tbe tax. Every club or organization having social, athletic, or sporting features, is presumed to be included within the meaning of the phrase, “any social, athletic, or sporting club or organization,” until the contrary has been proved, and the burden of proof is upon it. * * *

■Section 101.25 defines “social clubs.” It reads in part:

Any organization which maintains quarters or arranges periodical dinners or meetings, for the purpose of affording its members an opportunity of congregating for social intercourse, is a “social * * * club or organization” within the meaning of the Code, unless its social features are not a material purpose of the organization lout are subordinate and merely incidental to the .iactive furtherance of a different and predominant purpose, such as, for example, religion, the arts, or business. The tax does not attach to dues or fees of a religious organization, chamber of commerce, commercial club, trade organization, or the like, merely because it has incidental social features, but if the social features are a material purpose of the organization it is a “social * * * club or organization” within the meaning of the Code. * * * [Italics supplied.]

Many cases in this court and in other courts have sustained •and followed these regulations in determining whether or not a particular club is a social club.

The question presented in all of the cases is whether or not the social features are a material purpose of the club, or whether or not they are indulged in for “the active furtherance of a different and predominant purpose, such as, for example, religion, the arts, or business.” Each case, of ■course, stands on its own facts.

The question of whether or not this particular club was a .social club was before the District Court for the Northern District of Illinois in the case of Fleming v. Reinecke, 43 F. 2d 257. It was held to be a social club because it was said that the facts were “convincing to the effect that a material part of the club’s purpose was, as stated in its articles of incorporation, ‘to cultivate friendly and social relations and to promote better personal acquaintance among its members.’ The amendment to the articles of incorporation made after the assessment of certain of the taxes is not sufficient to overcome the effect of the facts bearing upon the issue.”

The Commissioner of onr court in his report does not quote-any provision from the club’s constitution similar to that quoted in Fleming v. Reinecke, supra. The only article quoted .from the constitution is as follows:

The objects of this Club shall be, through its educational program, to raise the standards of individuals' engaged in industrial and/or carrier traffic work, and to* promote a better understanding by the public of transportation problems; further, by bringing carriers and industrial traffic men together, to advance their mutual interests.

Apparently the club did not incorporate in its constitution the provision from the articles of incorporation quoted int Fleming v. Reinecke, supra, or if it had been once incorporated in it, it was dropped. But we do not regard this of particular significance. The actual activities of the club are more important than the purposes stated in its articles-of incorporation or constitution.

Resident membership in the club is restricted to “Supervisory representatives of institutions regularly engaged in- or identified with transportation or communication service,, also elected Officers and Directors of The Chicago Transportation Club, whose places of business or offices are within-thirty miles distant from the City Hall of Chicago.”

However, notwithstanding the stated object of the club,, we are of opinion that the social features of the club were-nevertheless one of its material purposes, and that these activities were not engaged in in order to further the predominant purpose stated in the constitution of the club.

The club rooms are on the fifth floor of the Palmer House,, a hotel in the city of Chicago. The club rooms are entered’ through an entrance lobby. A long hallway runs the length of the club quarters. At the end of it is the dining room,, with a capacity of 160. There are two private dining rooms,, a large lounge room, a library, a cocktail lounge, and a room, for the playing of cards. There are toilet facilities and two-shower baths, but no sleeping quarters. The lounge and library are furnished, as such rooms are furnished in the ordinary club, containing settees, chairs, and desks. In one of the rooms there is a piano, and there are several television, sets.

In addition, there is also a women’s lounge. A card is issued to the wife of each member or to some other female member of his household. This card permits her to use the facilities of the club and to invite guests. Women are permitted in the cocktail lounge from 2:30 p. m. on.

The club does not itself serve food and drinks. Instead, it employs the Palmer House to do so. The cost of food and drinks ordered by each member are charged to that member ■on the books of the Palmer House, but the club is responsible for the payment of these bills in case the member does not pay them himself. The club paid the Palmer House a fee ■of $2,520 for the service of furnishing food and drinks to •the members for the period March 1, 1952 to February 28, 1953. The club itself derives no revenue from the furnishing of either food or drinks. However, it does make these available to the members in the way stated.

A considerable quantity of beverages was consumed by the members both at lunch and dinner in the two years in -question, 1952 and 1953. In 1952 there were $48,615.50 worth ■of beverages consumed, and in 1953 there were $47,815.50 worth of beverages consumed.

The club rooms are extensively used for the playing of •cards. The club keeps on hand decks of cards for purchase by its members.

The club has a reception committee, which keeps men on duty at the front door during lunch hour to act as hosts. A welfare committee keeps informed of illnesses and deaths :among the members and takes appropriate action. There is a bowling committee, which supervises a bowling league, which is composed of over 100 members of the club, who gather once a week for matches among themselves. The •club also has a home-and-home series with the Milwaukee Traffic Club. These matches are followed by a party and ■dinner. The wives of the members participate in the party, and travel with their husbands to Milwaukee when games "between the Milwaukee Club and the Chicago Club are being played in Milwaukee.

Eight parties were arranged by the entertainment committee between March 12,1952 and February 5,1953. These parties were attended by the wives of the members.

The club has golf outings, and baseball outings. ■ Most of these sporting events are paid for by the members participating in them, but the club does advance to the various committees funds for their use, which advances are ordinarily repaid to the club, most of the entertainment committees being self-sustaining.

Luring the year 1952 the club itself sponsored 17 separate social functions, including parties, dinners, golf outings, baseball outings and parties, bowling matches, and other parties. This is in addition to such parties as were held in the club by the individual members on their own initiative.

It cannot be denied that according to the constitution of the club its predominant purpose is the promotion of better understanding between individuals engaged in traffic work and in the education of such persons and others with relation to traffic problems. However, we do not think it can be denied either that, although this is the predominant purpose, social activities are a material purpose of the club, and are not merely incidental to, and for the promotion of the stated purpose of the club to promote better traffic work and understanding.

Of course all the activities engaged in by the wives of the members of the club have no relation to its stated purpose of promoting better traffic conditions, but are altogether social in nature. The consumption of beverages by the members of the club is essentially social. The bowling activities of the club are considerable, and they, of course, are of a social or sporting nature; likewise the golf outings and the baseball outings.

We must conclude that its social features are a material purpose of the club, and that it must be held to have been a social club, as it was heretofore held to be by the District Court for the Northern District of Illinois. The facts before the court in that case are somewhat different from the facts before the court in this case, but they have a great deal of similarity.

We think this decision is in line with former decisions of this court in Arkwright Club of New York v. United States, 127 C. Cls. 247; Railroad-Machinery Club v. United States, 118 C. Cls. 542, 560; Bankers Club of America v. United States, 115 C. Cls. 50; Drug & Chemical Club v. United States, 115 C. Cls. 66; Engineers Club of Philadelphia v. United States, 95 C. Cls. 42; Transportation Club of San Francisco v. United States, 84 C. Cls. 253.

Plaintiff’s petition will be dismissed.

It is so ordered.

MaddeN, Judge; Litiueton, Judge; and JoNes, Chief Judge, concur.

Laramore, Judge, took no part in the consideration and decision of this case.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner George H. Foster, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is a citizen of the United States and of the State of Illinois, residing at 101 Bassford Avenue, La Grange, Illinois, and holds the offices of vice president and comptroller of the Chicago, Burlington ■& Quincy Railroad Company, 547 West Jackson Boulevard, Chicago 6, Illinois..

2. Since March 5, 1945, and at all times here pertinent, plaintiff has been a member of the Traffic Club of Chicago (hereinafter sometimes referred to as the “club”), a nonprofit organization organized under the laws of the State of Illinois and located in the Palmer House, Chicago, Illinois.

3. Between April 3,1952, and April 6,1953, plaintiff paid to the said club $15 on account of Federal excise taxes imposed by section 1710, as modified by section 1650, Internal Revenue Code of 1939, on dues or membership fees paid “to any social, athletic, or sporting club or organization,” at the rate of 20 percent of the amount of such payment. The club remitted said payments to the United States collector of internal revenue and the United States Director of Internal Revenue, Chicago, Illinois.

Claim for refund of the taxes paid was filed with the Director of Internal Revenue, Chicago, Illinois, on February 4,1954, and such claim was disallowed on January 10, 1956.

4. The Traffic Club of Chicago is a nonprofit organization organized in 1907. Article II of the constitution of the club is as follows:

The objects of this Club shall be, through its educational program, to raise the standards of individuals engaged in industrial and/or carrier traffic work, and to promote a better understanding by the public of transportation problems; further, by bringing carriers and industrial traffic men together, to advance their mutual interests.

The Traffic Club of Chicago is a founder member of the Associated Traffic Clubs of America, which is an organization of individual traffic clubs whose primary purpose is the dissemination of information among the various member clubs, the promotion of the education of young men, prospective occupants of traffic and transportation positions, and a general clearing house for traffic and transportation affairs between the various traffic clubs in America.

5. Membership in the Traffic Club of Chicago is divided into three categories: resident, nonresident, and honorary. Resident membership is restricted to:

Supervisory representatives of institutions regularly engaged in or identified with transportation or communication service, also elected Officers and Directors of The Chicago Transportation Club, whose places of business or offices are within thirty miles distant from the City Hall of Chicago.

These qualifications are adhered to in the acceptance of new members. The Chicago Transportation Club, whose officers and directors are eligible for membership in the Traffic Club of Chicago, is an organization composed largely of younger members of the transportation fraternity who have not yet reached a point in their business careers where they have met the qualifications of being in supervisory or executive positions.

6. Qualification for nonresident membership is the same as for resident members except that their places of business or offices must be more than 30 miles distant from the City Hall of Chicago. Nonresident members may not vote or hold office.

7. There are two classes of honorary members authorized by the constitution: those who have been members in good standing of the Traffic Club of Chicago for a period of at least 20 years before retirement from business or profession or who have performed some outstanding service for the Traffic Club of Chicago, regardless of the number of years such persons have been members; and another class of honorary members includes those persons who have distinguished themselves by meritorious public service, or officers of regular components of the United States Armed Forces stationed in the metropolitan district of Chicago. The club does not have any honorary members in the latter category.

8. The management of the club is lodged in a board of governors which consists of the elected officers of the club who are the president, first vice president, second vice president, third vice president, secretary, and treasurer, and ten directors elected by the membership at the annual election each year. The board of governors meets on the first Monday of every month with the chairmen of the committees of the club. The committee chairmen have no vote in deciding issues that come before the board of governors. The activities of the club are handled primarily through the board of governors and secondarily through the committees which are appointed to function in the various phases of the club’s activities. There áre 18 regularly appointed committees.

9. Space for the club is rented from the Palmer House on a square footage basis.. The club maintains the rooms, including all the furniture therein, except the furniture in the dining room.

10. The club rooms are entered through an entrance lobby that includes a hat check room. ■ A long hallway runs the length of the- club’s quarters leading to the dining room. There are a large general room, two private dining rooms, a library space, and another room can be partitioned off from the large room. There are a directors’ room, a dining room with a capacity of 160, and a cocktail lounge. Toilet facilities are provided but no sleeping quarters. There are two shower baths. There is also a women’s lounge. The directors’ room is used for card playing or other activities when available.

11. The club rooms are open from nine in the morning until nine in the evening, Monday through Friday. On Saturday they are open from nine in the morning until three in the afternoon. The club rooms are closed bn Sundays and holidays.

12. The lounge room is furnished about the same as any elub or hotel lounge room. There is a rug on the floor; sofas or settees, chairs, and desks are usually grouped so that three or more people can get together if they wish for convenience in discussion. The desks are provided with paper-as a general rule. There are a piano and television set which are seldom used.

13. The Palmer House supplies the food for the dining room from a kitchen which is located on the same floor as. the club rooms. This kitchen serves not only the dining room of the Traffic Club but all of the private hotel rooms on the same floor as well.

14. Tables, chairs, silverware, and other facilities in the-dining room belong to the Palmer House, and the waiters in the dining room are Palmer House employees and not employees of the Traffic Club. However, employees of the-Palmer House assigned to duty in the club rooms are subject to the rules and jurisdiction of the house committee of the-club while in the club rooms. The Traffic Club itself has about seven full-time employees. Their combined salaries for the fiscal year March 1,1952, to February 28,1953, came to $29,533.97.

15. Members making use of the dining facilities and the cocktail lounge may pay in cash, or, if they wish to have their house accounts charged, they sign blank checks provided for this purpose. The members are billed directly by the Palmer House for the amounts of their house accounts. Purchases made at the cigar counter in the main room of the club which are signed for are also charged to their house accounts.

The club pays the Palmer House for handling the house accounts of the members pursuant to a contract between the club and the Palmer House. This fee was $2,520 for the fiscal year March 1, 1952, to February 28,1953. If a member is in arrears in the payment of his house account, the Palmer House notifies the house committee of the Traffic Club. The name of a delinquent member is brought before the board of governors and if the bill is not paid within 30 days, the member is liable to suspension. The club guarantees to the Palmer House the members’ house accounts. Hues for membership in the club are paid directly to the club.

16. Wives of members are permitted in the club room at any time. Each member is furnished one card for the use of his wife, or some other member of his family, who can sign for service in the same manner as the members. No ■one other than a member of the family is permitted to have -a card. But members of the family can bring guests to the club rooms. Ladies are not permitted in the cocktail lounge 'before 2:30 p. m. on any day. Such use of the club by the families of members is not extensive.

17. Opportunity is provided for members to play cards in the directors’ room. The club does not furnish members with playing cards; they purchase them as they need them. At the close of fiscal years 1953 and 1954, which included the years in suit, the club had an inventory in playing cards of .$54.41 and $146.02 respectively. During the year commencing March 1, 1952, and ending February 28, 1953, the members of the club purchased 367 decks of playing cards.

18. During the years 1952 and 1953 the dining room of the ■club and its cocktail lounge were used as follows:

THE TRAFFIC CLUB OF CHICAGO
[Dining Room Attendance and Revenue from Food and Beverage Served in Club Rooms for 1952 and 1953]
1952 Dining room attendance Food revenue Beverage revenue
Luncb Dinner Lunch Dinner Lunch Dinner
January_ 4,984 1,118 $7,556.50 $3,355.75 $2,364.50 $2,454.30
February... 4,692 1,166 7,075.50 3,577.70 2.322.45 1,810.75
March_ 4,787 1, 510 7,129.70 4,817.03 2,373.60 2.642.10
April_ 4,728 1,006 7,155.95 3,123.75 2.224.10 2.413.10
May. 4,531 1,152 6,764.75 3,440.25 2,017.55 2,175.80
June. 3,990 721 6,170. SO 2,002.05 1.557.70 1,066.70
July. 3,994 859 5,955.50 2,496.65 1,946.00 1,323.85
August. 3,959 783 5,800.80 1,896.30 2,027.30 891.60
September.. 4,460 1,312 6,704.40 3.513.45 2,010.95 1,662.25
•October. 5,026 1, 564 7,549.05 4,089.10 2,563.00 2,684.05
November.. 3,974 1,077 5,947.45 2.991.45 1,837.80 1,445.70
December.. 4,702 1,392 7,007.95 4, 111. 80 2.874.45 1,927.90
Total.. 53,827 13,660 80,818.35 39,415.28 26,119.40 22,498.10
1953
January_ 4,207 1,239 6.426.10 3.362.15 2.602.35 1.858.10
February... 4,148 1,197 6,107.05 3,144.50 2,064.30 1,608.50
March. 4,720 1,815 7.217.80 5,164.95 2.435.50 2,489.85
April_ 4,509 1,300 6,675.70 3,879.55 2,270.05 2.369.10
May... 4,453 988 6.609.10 2.639.15 2,187.20 1.500.95
June_ 874 6.921.55 2.315.40
July. 3,951 521 5.761.55 1,483.25 1.934.50 980.75
August_ 3,773 778 5,536.00 2.260.40 1.851.50 1,394.80
‘September.. 4,262 706 6,312.50 1,922.45 2,063.20 1.236.95
•October. 4,737 1,280 7,128.15 4,148.90 2,360 90 1,753.60
November.. 4.350 1,241 6.495.80 3,892.80 2.151.35 1,913.20
December-. 5,022 1,342 7,642.05 4,489.00 3,281.60 1,799.55
Total.. 52,481 13,281 78,833.35 38,702.50 27,415.00 20,400.50

These figures reveal that about four times as many people used the dining room for lunch as for dinner, but that beverage revenue at dinner was almost as large as that at lunch.

19. The city of Chicago is a large industrial city and is spread over a large area. The great majority of the members of the Club are engaged in work in the Chicago area and the club provides a central meeting place for these members and their guests.

20. Members who belong to other organizations may obtain permission to use the club facilities for meetings and conferences conducted by such organizations. The club rooms are used frequently for social gatherings, but much more often for business meetings. During 1952 there were 17 special functions sponsored by the club, but 491 business meetings of various groups.

21. Members may arrange for use of the club rooms for individual business meetings or for meetings of groups or organizations directly connected with transportation to which these members belong. Use of the club rooms by these organizations is sometimes on a monthly basis, a weekly or semimonthly basis, or at irregular times during the year. Representative of the use made of the club rooms by these organizations is the Chicago Claim Conference, an organization composed of claim officials of the various railroads, which meets in the club rooms every Tuesday. The Regional Chapter of the National Association of Interstate Commerce Commission Practitioners meets in. the club rooms once a month. Delta Nu Alpha, a national fraternity composed of men engaged in transportation, also holds monthly meetings in the club rooms. These facilities are made available, when a member of the Traffic Club is also a member of the group and requests permission to use the quarters for a business meeting. A substantial number of the people who attend these meetings are also members of the Traffic Club. The nature of the activities during such meetings is not disclosed by the evidence. The House Rules provide as follows:

PRIVATE MEETINGS AND ENTERTAINMENTS
Rule 18. Members desiring to use the Club rooms for private meetings or entertainments, must make written application to the House Committee and secure their permission. Rentals will be charged in accordance with the schedule adopted by the House Committee and approved by the Board of Governors.

22. There was no charge made against members for the use of the club facilities by other organizations for business meetings during the years in issue.

23. All club activities are conducted through appropriate committees. All actions of committees are subject to approval of the board of governors.

24. Among the committees of the club are the auditing, trustees and finance, membership, nonresident, and house committee. Their functions are the same as those of similar committees in any business, club, or organization. There is also a past presidents’ committee which passes on possible honorary members. There is a national committee which is comparatively inactive during times of peace and a public affairs committee which seldom has more than one or two meetings a year. Discussion at these meetings cover national affairs. A public relations committee keeps the daily press and various traffic publications informed of the activities of the club. A historical and fine arts committee has jurisdiction over the paintings and pictures in the club rooms and an editorial committee publishes the Traffic Club publications. A reception committee keeps men on duty at the front door during lunch hour to act as hosts. A welfare committee keeps itself aware of illness and death among members of the club and sends flowers to the bereaved. Each year it has a Christmas party for 100 of the underprivileged children in the public schools. An educational committee, whose duties include arranging for the educational activities of the club, maintains the library and conducts at various times panel discussions or forums on important and timely transportation subjects. The club awards four scholarships a year to younger members of the traffic profession and it is the function of the educational committee to supervise this activity. The expense in connection with the scholarship awards, including tuition and the expense of selecting candidates, is paid from the general-funds of the club.

25. Books in tbe library consisted, during tbe years in issue, of technical publications having to do with the traffic and transportation field, as well as other books dealing with biography and history, classics, etc. During 1952 the maintenance of the library was a duty of the staff of the club.

26. During 1952 and 1953, the annual dinner committee arranged for the annual dinner of the Traffic Club, making all necessary arrangements for the menu, meeting place, and for the speaker at the meeting. These were made in the name of the Traffic Club of Chicago. The committee paid its own expenses. The annual dinner usually made a profit. The profits made in 1952 and 1953 were $5,144.06 and $4,552.16, respectively. The annual dinner for 1953 produced a profit by reason of the club having arranged with the Palmer House to furnish a dinner at a cost of $9.00 for each member plus tips and taxes. The charge to the members was $20 each: The club expenses included all incidentals for the dinner such as beverages for a cocktail party preceding the dinner and invitations, honorarium to the speaker, and decorations and orchestra. The profits derived from these dinners assisted the club in making rather than losing money.

27. During 1952 and 1953 the bowling committee supervised the activity of the bowling league composed of over 100 members who got together once a week during the appropriate bowling season for matches among themselves. The club had a home-and-home series with the Milwaukee Traffic Club. Each of these matches was followed by a party and a dinner. In 1952, the wives of those participating in the bowling matches with the Milwaukee Traffic Club traveled with their husbands to Milwaukee and participated in social gatherings during the afternoon and a dinner which followed. The bowling committee was considered important in contributing to the spirit of the club and was encouraged by the club.

28. The indoor entertainment committee purchased three television sets during the fiscal year March 12,1952, to February 28,1953. It arranged for eight parties between March 12, 1952, and February 5, 1953. These parties had a total expense of $4,726.24 which was more than covered by the receipts. Most of these affairs were held iri the club rooms of the club but some were held in other hotels. All of them were attended by the wives of the members.

29. The sports and pastimes committee arranged for three golf outings and one baseball outing between March 1,1952, and February 28, 1953. The club in 1952 granted $1,550 in appropriations to this committee although the sum was not needed as the committee conducted its activities with a slight profit. Eeservations for golf outings were usually made in the name of the chairman of the committee but the name of the club was used in connection with the outings. Attendance at the golf outings averaged about 195. Nonmembers could participate in the golf outings only as guests of members. Advertisements of activities such as golf and bowling were placed within the club so that the members might be aware of these activities but the committees paid for these advertisements.

30. Prior to 1952, it was the practice of the club to make advances for expenses of the animal dinner, bowling, indoor entertainment, and sports and pastimes committees. In that year the club embarked upon an attempt to make its dues tax-exempt by having the foregoing committees become self-supporting. But the attempt was abortive in that it continued to be necessary to advance payments to such committees. Thus it made advances to the sports and pastimes committee. It also made advances for golf outings which it carried on its balance sheets as prepaid golf outing expense. The club sustained some of the expenses of the bowling committee, but on the whole these committees were self-supporting.

31. None of the committees referred to in finding 30 could accumulate their funds. Whatever each of these committees may have accumulated over and above its expense, the club took possession of, so that the next year’s committees started without funds. These committees also received advances during the year. All such committees had to submit financial statements to the board of governors. Furthermore, each committee chairman was required to make reports to the board of governors.

32. The number of members participating in activities other than those having social aspects was considerably in excess of the number participating in golf or bowling.

33. The major income of the club was derived from dues, initiation fees, and the annual dinner. But there was income of $579.01 during the fiscal year in issue from the operation of a cigar counter where the club provided facilities for the members to obtain cigars, cigarettes, and playing cards. All merchandise at the cigar counter, except playing cards, was furnished to the club on consignment for sale. Moneys were also derived from surpluses in the hands of the bowling, indoor entertainment, and sports and pastimes committees, as well as interest on Government bonds. At the close of business February 28,1953, the club had an inventory of $308 in book matches, which are given away, not sold.

34. During 1952 the club sponsored 17 separate social functions including parties, dinners, golf outings, baseball parties, bowling matches and parties, and special TV gatherings and dinners to watch the Republican National Convention.

CONCLUSION OP LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and his petition is dismissed.  