
    UNION PACIFIC RAILROAD COMPANY v. THE UNITED STATES
    [No. 47643.
    Decided July 10, 1950.
    Defendant’s motion for new trial overruled November 7, 1950]
    
      
      Messrs. Lawrence Oalte and Raymond A. Negus for plaintiff.
    
      Mr. Louis R. M elding er, with, whom was Mr. Assistant Attorney General H. G. Morison, for defendant. Mr. Lester 0. Dibble was on the brief.
   Jones, Chief Judge,

delivered the opinion of the court:

The jeep, having been everywhere else, is now in court.

This case turns on whether the wartime jeep was primarily a passenger or a freight vehicle. The rates for transportation of the two classifications are different, the rate for the passenger classification being the higher.

The Official, Southern and Western Classification Committees, covering the entire country for the railroads, published the classification of the jeep as a passenger motor vehicle.

The War Department at first paid at passenger rates, but later objected and paid on a freight cargo basis, charging back the earlier excess payment against later shipments by plaintiff. The Comptroller General of the United States upheld the War Department and authorized payment of freight charges at lower second-class rates applicable to freight motor vehicles and payment was made accordingly. There have been no proceedings before the Interstate Commerce Commission.

The suit is for the difference in the two rates on certain shipments over the lines of the plaintiff company, the amount being $2,627.95.

The issue is not an easy one. A great deal of testimony was taken by our trial Commissioner. Much of it was conflicting. This was natural. The war was fought on many fronts, in different climates and under different conditions. Any one officer was limited in his field of operations. His

observations and conclusions were necessarily and closely linked to the conditions prevailing in his immediate sector. If he went into many areas he saw few of them in detail. The jeep was ubiquitous. Wherever anyone went the jeep was there. It frequently aggravated, but made itself indispensable. The name of the jeep is shrouded in mystery and involved in dispute. It is most generally thought to have been nicknamed by some soldier after a character in the comic strip, Pop-eye. At any rate it became the darling of the whole army.

One regimental motor officer testified that the jeep was used mainly for reconnaissance and to carry personnel; that in combat areas it was used for reconnaissance with four people riding, including the driver; that it went ahead to locate the enemy; that on reconnaissance in combat areas the men carried their individual equipment, arms, ammunition and light field packs; that it was adaptable to mounting a machine gun, out such equipment was not usually taken along on reconnaissance operations because it would run the weight above the payload limit and make' the car less maneuverable; that as a personnel carrier it could handle five men, including driver; that in hauling personnel little room was left for freight; that, while it was used to carry food and small-arms ammunition to the front, it was used 80 to 85 percent for personnel and reconnaissance. Other officers testified some on one side and some on the other, one going to the other extreme of a similar percentage of cargo use, especially in the combat zones.

A number of experts testified, differing greatly in their conclusions. We were somewhat confused when they started, and when we had finished reading their testimony our confusion simply covered a wider range. Most of their' testimony was based on the classification of cars, passenger and freight, that were built for civilian use, mostly on paved roads. But battles are not fought on paved roads. War is the grimmest business that ever engaged the attention of mankind. It gets off in rough places. Naturally, therefore, from an engineering as well as a layman’s viewpoint, cars, both passenger and cargo, for civilian use were of lighter construction. Cars that were to go into hills and valleys, over rocks, sand, mud and marshy areas, much of .which had been subjected to bombing, were necessarily of heavier construction, whatever the purpose for which they were to be used. These conditions were so varied that opinions and conclusions were widely variant.

We think it helpful to go into the background and endeavor to find why the car was built in the first place, and what need it was intended to serve.

The Federal Trade Commission spent weeks taking testimony as to the origin of the jeep. After it became famous, more than one company claimed parentage. From the order in that case and from the records and testimony before us these facts are developed.

For a number of years prior to 1940, many army officers recognized the need for a reconnaissance or scout car that could go where the motorcycle with sidecar and ordinary passenger cars could not go. The problem was discussed in various branches of the army. Major Hogan stated that for at least 10 years before its actual development certain Quartermaster Corps motor engineers felt a need for a motor vehicle that would take the place of the motorcycle with sidecar. Many officers stated that the jeep was the outgrowth of military characteristics evolved by army, men through a period of years. Brigadier General Curtis stated that the first thought of this car came when the General Staff needed a general reconnaissance car to haul the staff and assistants with maps during maneuvers and on battlefields; that motorcycles had been tried and had to be hauled back in trucks when they got stuck in the sand or mud. Another stated that motorcycles were too noisy and got stuck in the sand.

In May 1940, while the subject was under consideration by the army, particularly by the Chief of Infantry and the Office of the Chief of Cavalry, Charles H. Payne of the American Bantam Car Company came to the office of the Chief of Infantry and consulted with certain officers relative to developing a car suited to the army’s needs. Payne’s idea was to use his company’s car, called the Bantam (formerly the Austin), or its chassis as the basis for the new vehicle. Following these conferences General Lynch, the Chief of Infantry, on June 6,1940, addressed a letter to the Adjutant General, outlining the characteristics needed in the proposed car and recommended that a number of such cars be procured for testing purposes. The recommendation was concurred in by the Chief of Cavalry and the Quartermaster General and was approved by the General Staff. The project was referred by the General Staff to the Ordnance Technical Committee, composed of Ordnance, Infantry, Cavalry, Field Artillery, and Quartermaster Corps officers. This committee had a subcommittee visit the Bantam Car Company “For conferences with the officials and engineers of that company in regard to the military characteristics and design of the light command and reconnaissance car * *

After the visit with the officials and engineers of the Bantam Company, the committee prepared a memorandum of the general features and characteristics of the proposed new car. On July 11, 1940, the Quartermaster Corps sent out to 135 automobile manufacturers an invitation to bid on 70 “Light reconnaissance and command” cars or trucks.

Only two bids were received, one from the Bantam and the other from the Willys-Overland Company. The latter company doubted that it could produce the pilot or test model within the 45 days required and the contract for the 70 cars was let to the Bantam Car Company. The model was delivered September 23,1940, and tested in October 1940. The other 69 cars were delivered December 17, 1940, and these were sent to a number of camps for testing.

In the meantime Ford also became interested. Willys-Overland had delivered a pilot model on November 3, 1940, and Ford on November 23, 1940.

Contracts were let the latter part of 1940 to the three companies to build 1,500 each, all of which conformed generally to the army specifications. On test in the summer of 1941 each was found to have certain advantages and certain disadvantages, the Willys having the more powerful engine.

The army then standardized the requirements and asked for bids on 16,000, which were submitted by the three companies. Willys being low received the award. Willys agreed to turn over its blueprints and data to any other manufacturer designated by the army. Orders were greatly increased and by November 1944 Willys had delivered 282,420 vehicles and Ford 237,163, and purchasing was continued. The jeep was running all over the world and serving many purposes. All three companies deserve credit for developing and perfecting the vehicle.

This background is somewhat revealing.

The defendant insists that the vehicle is primarily a cargo truck. In a well-prepared and helpful brief it argues strongly the comparatively heavy chassis and many other features. It is persuasive but not quite persuasive enough in the light of the background, purpose, and needs of the army. True, it was used for hauling, but that does not necessarily make it primarily a cargo truck.

When I was a boy, calves being more numerous and cheaper than ponies, we undertook to substitute by using a calf named Bobby. We built a wagon — entirely homemade— using a cracker box for a bed and four unmatched wheels. After several run-aways and wrecks we had the calf trained so we could not only do light hauling but could ride him. We called him our little pony. But somehow nature had intended him for other purposes and we finally gave up. We almost shed tears when they slaughtered him for beef. The memory lingered on and we still thought of him as part pony.

A neighbor lad whom we called Ben, not to be outdone, built a similar contraption. Having no. calf of the right size he drafted a billy goat named Charles, that he swore would make over into a first-class horse. Ben was persistent and Charles was nearly as stubborn. He had a better wagon — the wheels matched and the box had a coat of whitewash. But Charles would balk at times, and would also run into the brush in order to nibble on his favorite shrub' and stubbornly refused to eat corn. After several months Ben, in a burst of confidence, finally admitted to me that Charles was still a goat.

In both instances we finally had to admit that neither animal was primarily a horse, even though we had made them serve the purpose.

It is difficult to classify the jeep. It served many purposes. It did much hauling during the war period, both of men and materials.

It was designed originally as a reconnaissance car. It was necessary to get men and officers to the front, frequently over rough terrain, where regular passenger cars could not go. The motorcycles even with sidecars did not meet the requirements. The army had numerous freight trucks, the extra large ones, the 6x6, the 214-ton, the y2-ton, and many others of varying sizes. Since the army had freight trucks with loading capacity varying from y2 to 10 tons, it does not seem plausible that it would call for the building of a truck, designed primarily for freight, that had a y^-ton capacity.

The design called for a speed of 55 miles per hour. It had seats for four passengers. It had no sideboards and very little cargo space. In combat areas it was used a great deal for hauling supplies to the front, but that was frequently by attached trailer, which on arrival would be detached and the jeep used as a passenger vehicle. Outside combat areas-it was used largely for passenger transportation.

None of these qualities indicate a vehicle designed primarily for freight.

I have seen my father haul everything .from ploughshares-to a crosscut saw in a buggy, but that hardly made the buggy a freight vehicle.

The technical manual entitled “Standard Military Motor Vehicles,” issued by the War Department stated the purpose of the jeep.

Purpose: To carry personnel, primarily for reconnaissance; to transport light cargo; to tow 37 mm. antitank gun.

The regular trucks, ranging from the yz-ton pickup in varying weights and capacities up to the 10-ton trucks, all had an entirely different appearance. Some of them had a payload rating as high as 12,000 pounds. The jeep had a payload rating of 700 to 800 pounds, which was about the same payload as that designated for Plymouth, Chevrolet, ' and Ford passenger sedans.

Wartime conditions suspend many rules, and emergencies call for the action of the times. We recall the answer of Charles Gr. Dawes, during one of the investigations following World War I. He was asked if he hadn’t paid $200 apiece for ponies in France that he could have bought for $50 a head in Texas. With a dramatic gesture of his under-slung pipe he replied, ‘‘Yes; I suppose I did. I would have paid $200 for sheep, if they could have hauled those guns, up to the boys at the front.’’ No doubt the ponies were used,, but that didn’t make them draft animals. They were primarily riding ponies.

Surely the jeep was used for hauling. It was in many respects an all-purpose car. The army called it a truck, but that is not very persuasive, since the army called all wheeled vehicles trucks, including passenger cars, except, the sedans. It was greatly used for hauling light equipment, especially in the combat areas. But it was used all over France, North Africa and India, the South Pacific and everywhere the army went, both in combat and noncombat areas, by all soldiers from the private to the top general, as a passenger car. It was not a streamlined luxury creation, but it was especially useful in rough terrain where the sedans, motorcycles, and other passenger cars could not go.

We find that the wartime jeep was primarily a passenger car. The plaintiff is entitled to recover. It is so ordered.

Howell, Judge-, Madden, Judge-, Whitakee, Judge-, and Littleton, Judge, concur. 
      
       In the Matter of Willys-Overland Motors, Inc. et al., Docket No. 4959, February 27, 1948.
     