DISSENTING OPINION
FoRd, Judge:The collector of customs classified so-called percussion hammers as surgical instruments, which is a use provision under paragraph 359 of the Tariff Act of 1930, as modified by the Annecy Protocol to the General Agreement on Tariffs and Trade, 84 Treas. Dec. 403, T.D 52373, as supplemented by T.D. 52462. In order for the plaintiff to prevail, it must be established by positive testimony that the chief use of the involved percussion hammers is not surgical.
I do not believe the record herein satisfactorily negates the presumption of correctness attaching to the classification of the collector that said merchandise is a surgical instrument. The record herein consists of the testimony of Dr. Richard E. Heller and a sample of the involved merchandise. While Dr. Heller, in my opinion, is a well-qualified surgeon, apparently specializing in the field of traumatic surgery, the evidence adduced from him was directed to his own per*73sonal experience in tbe use of percussion hammers. The record would seem to establish that Dr. Heller’s practice was limited to the Chicago area, although there is some reference to Army service, which was not further developed to indicate in what other areas the doctor also practiced. The testimony of a doctor directed only to' his personal use of an article in one State is not, in my opinion, sufficient evidence to negate chief use.
The percussion hammers involved herein may well be solely used for diagnostic purposes. However, the court is required to find positive evidence to negate the use as a surgical instrument before it is able to classify the involved merchandise under the “catch-all” provision of paragraph 397 of the Tariff Act of 1930. In the absence of such proof, either by positive testimony or by stipulation, the court has no alternative but to sustain the classification of the collector.
The majority opinion, in accepting the testimony presented, is, in effect, taking judicial notice of the fact that the involved percussion hammers are not chiefly used throughout the United States as surgical instruments. 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. I will admit that, in a case such as this, it is rather tempting to take judicial notice of the use of the involved article, as it was in the Tobert case, supra, wherein the late Judge William P. Cole, Jr., made the following observation, which I deem appropriate to the case at bar:
* * * 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 ease before us is not in that category. We find it almost totally unacceptable for such purposes.
For the foregoing reasons, I am of the opinion that plaintiff has failed to overcome the presumption of correctness attaching to the classification of the collector of customs and I would, therefore, overrule the protest.