dissenting,
with, whom Almond, J. joins.I agree that this case turns on the meaning of the term “utensil.” While the majority opinion demonstrates that the case law points in the direction of a broad definition of the term “utensil,” I think the opinion extends the definition beyond the common meaning of the term.
As this court stated in I. W. Rice & Co. v. United, States, 24 CCPA 114, T.D. 48415, at p. 116: “The provision for ‘household utensils’ must, in the absence of commercial designation, be construed in accordance with its common meaning.” In Frank P. Dow Co., Inc. v. United States, 21 CCPA 282, T.D. 46816, the court, after setting out various dictionary definitions, stated at p. 287: “* * * we are of [the] opinion that the involved articles [electric floor polishers and vacuum cleaners] clearly come within the common meaning of the term ‘utensil’.”
I think the common meaning of the term “utensil” connotes a tool function as well as a utility function in an article. The tool aspect to my mind is essential, while the decisions cited by the majority emphasize the utilitarian aspect in broadly applying the definitions to the articles with which they were concerned. An over-emphasis of the utilitarian aspect can lead to an unrealistic result, as this case shows. A chair is useful but it is hardly a tool or utensil; the same is true of a curtain pole end. The Customs Court found it “clear from the definitions [from the Dow case] * * * that pole ends * * * are not utensils or implements.” The majority cites the same definitions from the Dow case to arrive at the opposite result. In the absence of clear error, I would let the judgment of the Customs Court stand.
There is no question in my mind that the decisions cited by the majority which apply a broad definition of the term “household utensil” to goods not specifically provided for elsewhere, do so consistently with the changes Congress made in the phrasing of paragraph 339 as reviewed in the Dow case.1 A review of those cases also shows that while they emphasize the utilitarian aspect of the term they are consistent with an essential tool aspect rationale. While this rationale has not been clearly stated in those cases, the instant case, by taking one step beyond, finally demands it be articulated.
The Dow case, supra, held electric vacuum cleaners and floor polishers to be household utensils; clearly they have a tool aspect. The question in Pramette Juvenile Furniture Co. v. United States, 36 CCPA 61, C.A.D. 398, and I.W. Rice & Co., supra, was not whether the *31articles were utensils but whether they were chiefly used in. the household. In Rice, atomizers were conceded to be utensils and were held to be chiefly used in the home, while in Pramette the baby strollers were chiefly used on streets and beaches, not the home. Whether the court in those cases also should have determined whether the articles before it were utensils, need not be discussed here. Appellee here, however, does not concede that brass curtain pole ends are utensils, and that is our only issue.2
If we are to follow the definition of the Pramette case quoted in the majority opinion, we must note that it contains two elements, a “utilitarian purpose,” and also a qualification that the articles are to be used “for the care and maintenance of the home.” Although the pole ends are stipulated to be chiefly used in the household, this alone does not compel the result under the Pramette definition, since only in a peripheral sense can the pole ends be said to aid one in “care and maintenance of the home.” They are part of furnishings which themselves must be maintained.
The Wool/worth case, in citing the Bice case as authority, on careful analysis seems to be primarily concerned with the chief use of the articles. The witnesses testified as to where the pencil holder was to be used. A second concern of that court was whether the utility of the pencil holder was sufficient to preclude its being termed only ornamental. While the article in the Woólworth case is on the border of having a tool aspect, the presence of more than one question in issue in that case is such as to make the case no authority for a proposition counter to the rationale advanced by me here. Certainly the curtain pole end here has less of a tool aspect than the pencil holder of the Woohvorth case.
A pair of cases which most clearly point out the rationale advanced by me is the Domes case, cited in the majority opinion, and U. Fujita & Co. v. United States, 26 CCPA 63, T.D. 49611. In Davies a water mixing device was held to come within the common meaning of the term “household utensil.” In Fujita, door knockers were held not to be “household utensils” primarily because:
* * * we are unable to accept the view that it was the purpose of the Congress to include within that paragraph articles designed to be, and, when in use, are, permanently attached to houses as fixtures, and, as such, a part of the realty.
While the Fujita case is tinged with aspects of whether there was use in the household, contrasting it with the Davies case shows the water mixer in Davies had a tool aspect, and was held to be a “household *32utensil,” while the door knocker of the Fujita case had none, and was held not to be a “household utensil.”
The Customs Court commented that its earlier decision in Kroder Reubel Co., Inc. and Alltransport, Inc. v. United States, 44 Cust. Ct. 274, C.D. 2186, was “distinguished,” but did not give the basis for its distinction. I am unable to reconcile the decision in that case with the principles I have advanced here, but recognize that the classification of curtain rings is not before this court.
What the majority decision does is to settle the law on the question of what is a utensil by reading — household article — in place of a “household utensil” in paragraph 389. All that is left and governing is the matter of chief use.
In this type of case the court should be guided by the common meaning of the word in issue. According to the dictionary definitions cited by the majority, it does not appear to me that the common meaning of “utensil,” involving as an essential a tool aspect, includes the imported merchandise. I, therefore, would affirm the judgment of the Customs Court.
It Is to be noted that the review In Doto of the changes In statutory language was In connection with the scope of the term “household” on the question of whether the floor polishers were household articles, the vacuum cleaners concededly being household articles.
We are not here concerned with the doctrine of chief use, as applied in the Dow case (and the issue in the Bioe and Pramette cases), to reinforce the conclusion in Dow with respect to chief household use of floor polishers, in guiding a choice between two paragraphs where the articles are not specifically provided for, since the brass curtain pole ends herein are stipulated to be chiefly used in the household.