
    INLAND PUMP MANUFACTURING CO. v. THE UNITED STATES
    [No. L-388.
    Decided June 6, 1932]
    
      
      Mr. John E. Hughes for the plaintiff.
    
      Mr. Ralph O. Williamson, with whom was Mr. Assistant Attorney General Gharries B. Rugg, for the defendant.
   GREEN, Judge,

delivered the opinion:

Plaintiff is a corporation and at the time involved in this case was engaged in the manufacture and sale of air pumps. In its petition it asks for the recovery of excise taxes in the sum of $2,508.02 which had been assessed and collected from it on sales of air pumps as accessories for automobiles.

The evidence in the case is quite conflicting. Two experts testified — one for plaintiff and one for defendant — and it is impossible to reconcile their respective conclusions. It also appeared that the original patent under which the pumps were manufactured stated that the invention related more particularly to the type of pumps used for inflating the tires of automobiles and that one object of the invention was to provide a tire pump which might readily be attached to the running board or other rigid portion of the frame of a vehicle. The pumps were advertised in mail-order catalogs as automobile tire pumps, but they were also used and bought for other purposes. The burden of proof was upon the plaintiff to establish by a preponderance of the evidence that the pumps in controversy were neither primarily designed for use upon automobiles nor specially adapted for that purpose'. See supplemental opinion in the case of Anthony Co. v. United States, 56 Fed. (2d) 481, decided by this court March 7, 1932. [73 C. Cls. 758.] The findings of fact show, and from all the evidence we have concluded, that the plaintiff has failed to sustain this burden. It follows that judgment must be rendered dismissing the petition, and it is so ordered.

Whalev, Judge; Williams, Judge; Littleton, Judge; and Booth, Ghief Justice, concur.  