dissenting.
Because the undisputed evidence so clearly establishes that the primary purpose of the retrievers is to load and then transport cotton modules on public highways that no reasonable jury could find otherwise, I must respectfully dissent from the affirmance of the judgment.
As the court’s opinion sets forth, the evidence is undisputed that the retrievers are required to travel over public highways in order to perform their designed purpose of transporting cotton modules from the fields to the cotton gins. Indeed, GLB’s own advertising brochure, entitled “Move With The Future,” states in part “Whether your module retriever is going on 200-mile hauls or just across the gin yard, you can be assured that you will be able to return to the gin with a module with a G.L.B. Module Retriever.”
True enough, the retrievers, given their length, height, and weight, require careful attention by the driver and more than normal space in which to turn from the highway to a gin yard or a loading site. Nevertheless, they can be driven up to and in excess of posted speed limits. Also true enough, the retrievers are specially designed to load the modules, having an ingenious, unique rear-mounted track assembly that enables the operator to load a module without utilizing the reverse gear on the truck itself in all but the most severe operating conditions.
That acknowledged, however, the record is clear that once the operator has loaded the module, the function of the retriever, equal in importance to that of loading the module, is to transport the module over a public highway to a cotton gin. Save for the cotton grower who owns his own gin (and the testimony referred to only one such — the J.G. Boswell Co. in California), a retriever must travel over the public highways to fulfill that function. Thus, unlike a truck that is specially designed and equipped to transport the heavy draw-works employed in the oil drilling industry and thus a vehicle that can fulfill its primary function of transporting those heavy loads largely within the confines of an oil field, the module retrievers cannot fulfill their primary function of loading and transporting modules without traveling over and upon public highways.
Accordingly, I would reverse the judgment and remand with directions that judgment be entered in favor of the government.
Judgment AFFIRMED.