DISSENTING OPINION
Ford, Judge:The provision for surgical instruments under which the classification of this merchandise was made by the collector of customs and the claim of plaintiff under the provision for diagnostic instruments are both use provisions.
*32It is well settled that when use is a determinative factor in the classification of imported merchandise, the chief use is controlling, United States v. James P. Heffernan Paper Co., 17 C.C.P.A. (Customs) 61, T.D. 43358. Chief use is a question of fact which must be established by positive testimony.
Since chief use is the legal principle involved herein, it was incumbent upon plaintiff to affirmatively establish chief use of the involved otoscopes by testimony representative of an adequate geographical cross-section of the Nation. The physician called on behalf of plaintiff testified that the involved otoscopes are used for diagnosis and therapeutic purposes, are not used by a surgeon, and are, in his opinion, not surgical instruments. The record establishes that this witness is licensed to practice medicine in the State of New York. There is no indication nor affirmative evidence that his testimony as to his opinion is based upon experience other than in the State of New York. The physician who testified on behalf of defendant corroborated in part the testimony of plaintiff’s witness by indicating that, in his personal use of an otoscope, 60 to 75 percent of the time, it was as a diagnostic instrument and 25 to 40 percent of the time as a surgical instrument. However, the experience of this witness appeared to be limited to New York and New Jersey. The trade witness called on behalf of plaintiff, although alluding to visiting doctors in various parts of the country, did not establish in what states or parts of the country he had visited.
In spite of the fact that physicians called both on behalf of plaintiff and defendant indicated that, in their own personal experience, the otoscopes were not chiefly used as surgical instruments, and the commercial witness called on behalf of plaintiff testified that said otoscopes were sold as electrical diagnostic instruments, such proof falls short of overcoming the presumption attaching to the classification that such otoscopes were chiefly used as surgical instruments. This is particularly so when the commercial witness was actually present at the time sales were made to doctors, only in the New York area.
Testimony as to the chief use of otoscopes as diagnostic or therapeutic instruments in one or two states or in a limited section of the country is likewise insufficient. Pacific Guano & Fertilizer Co. et al. v. United States, 15 Ct. Cust. Appls. 218, T.D. 42240. Since the testimony fails to establish chief use generally, plaintiff has failed to meet the burden of proof imposed upon it. The case of United States v. F. W. Woolworth Co., 23 C.C.P.A. (Customs) 98, T.D. 47765, relied upon by the majority opinion herein, also supports my position with respect to the evidence necessary to establish chief use. The court, in the Woolworth case, supra, which involved uninflated rubber balls, *33classified as toys under the provisions of paragraph 1513 of the Tariff Act of 1930 and claimed to be properly dutiable under paragraph 1502 of the Tariff Act of 1930, as balls, primarily designed for use in physical exercises, concluded that the imported balls would be used in the same manner and by substantially the same class of people in one section of the country as in another. However, the evidence therein established the chief use of the involved balls “in a large area of the country.” The court therein concluded that such evidence was sufficient under the rule. As indicated, supra, the evidence herein establishes at best chief use in two states.
While judicial notice may be taken of well-known uses of an article, chief use must be established by positive testimony. L. Tobert Co., Inc., American Shipping Co. v. United States, 41 C.C.P.A. (Customs) 161, C.A.D. 544. The facts in the case at bar and those of the Tobert case, supra, are strikingly similar. In the instant case, the involved otoscopes are instruments familiar to most of us who have had any contact with the medical profession, and, as such, it is tempting to apply judicial knowledge of chief use, as the late Judge William P. Cole, Jr., stated in his opinion in the Tobert case, supra. Particularly pertinent herein is the following observation made in the Tobert case, supra:
* * * It is tempting, therefore, for us to apply our judicial knowledge on the subject and once and for all determine the classification of such articles for tariff purposes in the future. We recognize, however, that despite what may be the experience and knowledge of one judge or another, such may not be in line with the chief use as determined via proof, which seems to us must be available in quantity and quality sufficient to assist the court in future litigation. It is to be regretted that the record in the case before us is not in that category. We find it almost totally unacceptable for such purposes.
Accordingly, I am of the opinion that the court may not take judicial notice of the fact that medical procedures tend to become standardized. What is standard in one section of this Nation may not be standard in another, and it is, in my opinion, improper for this court to take judicial notice of this fact. The facts in the case at bar appear to be reason enough for the court not to take judicial notice, since the two doctors who were called to testify do not appear to use the involved otoscopes in the same manner. While Hr. Breitman never uses the instruments for surgery, Dr. Meyers uses the same instruments from 25 to 40 percent of the time for surgical procedures. The chief use of the involved instruments should, in my opinion, have been established by competent evidence and may not be proven by the application of the principle of judicial notice by the court.