Hine v. United States

Howell, Judge, delivered the opinion of the court: The sole question involved in this suit is whether or not so-called Fishing Eod Kits as sold by plaintiff George Hine — 838 — Products Co. are “fishing rods” within the meaning of Section 3406 (a) of the Internal Bevenue Code which provides in pertinent part as follows: There shall be imposed on the following articles sold by the manufacturer * * * a tax equivalent to the rate, on the price for which sold, set forth in the following paragraphs: (1) Sporting Goods. * * * fishing rods, creels, reels, and artificial lures, baits, and flies; * * *. (26 U. S. C. 1946 Ed. Sec. 3406.) Plaintiff’s business, started in 1946, consisted originally of the manufacture and sale of completed bamboo fishing rods, but during 1947 he discontinued the manufacture and sale of such rods and became the exclusive distributor of a spun glass fishing rod shaft manufactured by the Harrison-Bennels Company. The shafts which are sometimes referred to as “blanks” were the essential part of a fishing rod and were sold primarily to hobbyist type of fishermen who preferred to complete the fishing rod in accordance with his own personal desires and/or superstitions. In order to bring the shafts to the state of completion which would warrant their description as completed fishing rods within the conception of laymen, or “catch as catch can” fishermen as distinguished from “hobbyist” fishermen, the purchaser was required to do the additional things described in Finding 4. Obviously, allowance was made for hobbyist fishermen to “rig” the shafts according to individual requirements. In other words, various kinds of ferrulés with different bushings could be affixed and installed, and guides of different sizes and materials in varying numbers could be affixed along the shaft. Spun glass shafts were an innovation on the market at the time plaintiff became exclusive distributor for the Harrison-Kennels Company. Indeed, they were novel when compared with one-piece bamboo and steel rods as well as sectional or disjointed rods commonly known to ordinary fishermen up to that time. It is admitted that for practical purposes, plaintiff was the only company selling spun glass rods along with ferrules which could be properly attached because of the novelty of — 839 — this type of rod upon the market at that time, 1947 to July 1948. (Finding 5.) Because of the novel nature of the rod and the difficulty of obtaining ferrules of proper size by the purchasers of such rods as well as the difficulty of attaching ferrules to the shafts, plaintiff in 1948 began selling “kits” containing all the items needed to make up a complete fishing rod except wrapping material, varnish and color retainer. The “Kit” contained: (a) spun glass shaft with ferrule attached, (b) reel seat and handle assembly, (c) matched set of guides and tip-top, affixed to a card but not installed on the shaft, (d) on some rods, cork foregrips cemented to the shaft. (Finding 6.) Plaintiff did not manufacture any of the component parts of the kit, except the ferrules which were reamed on a screw machine from purchased forms. In addition to this minor manufacturing operation, plaintiff also performed at his factory all work requiring special tools and cement including the installation of ferrules, adaptors, foregrips, reel seats, and winding checks. By wrapping on the guides and cementing on the tip-top, the purchaser could make a completed fishing rod. From July to September 1948, inclusive, the plaintiff continued the manufacture and sale of these kits and collected excise taxes from his vendors on the sale of such kits which he paid to the Collector of Internal Kevenue. Hence those taxes are not in issue in this suit. On July 26, 1948, the Commissioner of Internal Revenue advised plaintiff that the sale of the kit above described would be taxable under Section 3406 (a) (1) of the Internal Revenue Code, supra, inasmuch as the applicable regulations provided that a manufacturer who sold a taxable article in a knockdown condition but complete as to all component parts was liable for the tax. (The letter of inquiry dated June 28, 1948, and the Commissioner’s response dated July 26, 1948, are set out in Finding 8.) In response to plaintiff’s further inquiry dated July 28, 1948, the Commissioner advised him on August 20,1948, that the kit would be taxable even if the tip-top were excluded. (See Finding 9.) — 840 — Plaintiff and his attorney concluded that, if certain components of a completed fishing rod were omitted from the kit, the kit would not be taxable when sold. In November 1948, plaintiff began and has since continued to make and sell the kit, the taxability of which is here in issue, differing from the one sold during the months of July, August, and September only in that the guides and tip-top were omitted. In referring to the kits in the catalog of plaintiff’s products, these words are used: Kits — All work requiring special tools and cement has been done at the factory, such as installing ferrules, cork grips, reel seats, and winding checks. Customer has only to wrap the guides and install the tip-top to build a rod to meet his own requirements. Since November 1948, plaintiff did not collect from his vendors or pay to the Collector the manufacturer’s excise tax imposed by Section 3406 (a) (1), supra, upon the kits sold. The Commissioner of Internal Revenue determined that the kits were “fishing rods” within the meaning of that Section, and assessments were made on the sales thereof for the period from November 1, 1948, through February 28, 1950, in the amount of $9,784.67. On January 17,1951, plaintiff paid $517.32 of the amount so assessed representing the tax for the month of November 1948, and on the same day filed a claim for refund of that amount. This claim was rejected by the Commissioner on March 16,1951. In our findings of fact numbered 14 through 23, a detailed description of plaintiff’s business methods in marketing fishing rod kits as well as the component parts of a fishing rod, including shafts, ferrules, bushings, reel seat, handle assemblies and cork foregrips, can be found along with a discussion of the uses made of the various products by hobbyist as well as ordinary type of fishermen. These matters should be of interest to those who love and participate in the great sport of fishing, but for the purposes of this opinion we do not deem it necessary to set them out here. Suffice it to say, we must decide whether the kit, as marketed and sold by plaintiff during November 1948, constituted “fishing rods” within the meaning of the Internal Revenue Code. — 841 — Neither the statute nor the Regulations defines exactly what is meant by “fishing rods.” Plaintiff, in order to assist the court in determining whether his product is one which should be subject to the excise tax proposes three tests: (1) The kit as sold by plaintiff cannot be used as a fishing rod because of absence of the guides and tip-top; (2) Without the guides and tip-top the rods are not substantially complete ; and (3) Business reasons other than tax considerations dictated plaintiff’s policy of offering kits for sale rather than completed rods. Plaintiff argues that, while no one of these tests is determinative, when considered together they do establish that the kit is not a fishing rod. We have carefully considered these three tests in the light of plaintiff’s resourceful arguments and our own experience as fishermen who have at one time or another employed almost every device for catching fish known to man from the bent pin on a piece of string attached to a hand-cut willow branch to the finest sectional and/or one-piece rods made of bamboo, steel or spun glass to which have been attached ferrules, tip-tops, guides, handles, reel seats and reels of varying shapes, sizes and quality, carrying lines of every kind available. However, we cannot agree with plaintiff principally for the reason that we feel this product falls within the commonly understood and accepted meaning of the term “fishing rod.” This court has consistently held that words of a statute should be presumed to be used in their ordinary and usual sense within the meaning commonly attributed to them, unless the contrary clearly appears. Coleman v. United States, 93 C. Cls. 127, 131-132. In spite of the fact that plaintiff’s product did not include tip-tops and guides, the great majority of people everywhere would know and call them “fishing rods.” True enough, they might be called “blanks” by those engaged in the trade, but what could they be called or to what practical use could they be put other than “fishing rods?” Plaintiff says that it would be extremely difficult if not impossible to cast with a “blank” rod and this is true, but we can conceive of no other practical use for them except as fishing rods. — 842 — In Endicott v. United States, 72 C. Cls. 323, cert. den. 285 U. S. 555, this court considered the question of whether various types of skates adapted for use by children were “skates” within the meaning of an earlier revenue law imposing an excise tax on sporting goods. We held the articles taxable saying, at page 331: We think the different types of skates made and sold by the plaintiff were in all respects skates and that the variation in design and structure was no more than a purpose to cater to the wants of those desiring to use skates, either roller, ice, sled, or sidewalk, a commercial intent to supply the trade with a type of skate adapted to the particular use and status of the prospective customers, a mere variation in style and structure of an existing and long-identified article of amusement and exercise well known and easily recognizable as “skates.” Recently, in Union Pacific Railroad Company v. United States, ante, p. 390, we were called upon to decide whether a steel bomb body filled with an incendiary gel, but without a burster and fuze attached could be properly described as an “incendiary bomb” within the meaning of certain consolidated freight classifications. In holding that it could be so described, we said: While the absence of the burster and fuze admittedly renders the shipment of the article less hazardous from a transportation standpoint, the only logical description of such an article is as an incendiary bomb. The articles as described on the bills of lading were incendiary bombs without bursters and fuzes, and they had no purpose or use except as incendiary bombs. While there were various styles and sizes of the blank rods sold by plaintiff with interchangeable reel seat and handle assemblies within the same general class of rods, they nevertheless continued to retain an identity which cannot be otherwise described than as “fishing rods.” Having reached the stage of manufacture or development where they became recognizable as one of the sporting goods described in Section 3406 (a) (1) the rods upon being sold were subject to tax even though there remained one or more finishing operations to be performed. — 843 — Plaintiff makes a further argument to the effect that the person who actually finishes the rods may also be regarded as the manufacturer of a taxable article and that it would be necessary to go to the streams, lakes, and oceans, in order to collect the taxes due and owing to the Government. While it is true that the arm of the Tax Collector reaches a long way in every direction, in this instance provision has been made not only to collect the proper tax but also to prevent the possible imposition of double taxes where an article is sold “for use by the vendee as material in the manufacture or production of, or as a component part of, an article enumerated in this chapter * * (Section 3442, Internal Revenue Code, 26 U. S. C. 1946 Ed.) Section 316.21 of Treasury Regulations 46 (1940 Ed.) provides that the sale, in such cases, is not subject to tax providing the vendee furnishes the seller with an exemption certificate. So, while it is true that the purchaser of one of plaintiff’s kits who in most instances is the fisherman himself may be regarded as a manufacturer of a taxable article when he installs the tip-tops and guides according to his own liking, the plaintiff is not relieved from liability under the statute unless he obtains exemption certificates from his vendees. The parties have stipulated that no tax has been collected from the plaintiff where the vendee has supplied exemption certificates. Hence plaintiff’s liability is for the tax on sales made to persons who did not furnish exemption certificates even though such persons might also be liable for excise taxes on their use or sale of kits which were made into completed fishing rods. Plaintiff evidently tried to market as much of a fishing rod as possible without becoming liable for excise taxes. We think that plaintiff’s policy of offering kits for sale rather than completed rods was dictated more by tax considerations than by business or commercial reasons. Plaintiff’s petition is hereby dismissed. It is so ordered. MaddeN, Judge; Whitakek, Judge; LittletoN, Judge; and JoNES, Ghief Judge, concur. — 844 — The court makes findings of fact, based upon the evidence, the report of Commissioner Richard H. Akers, and the briefs and argument of counsel, as follows: 1. The plaintiff is a resident of Santa Monica, California, where he is engaged in business as the sole proprietor of George Hine Products Company. 2. The business was started by the plaintiff in 1946 and consisted originally of the manufacture and sale of completed bamboo fishing rods. 3. During 1947 the plaintiff discontinued the manufacture and sale of bamboo fishing rods and became the exclusive distributor of a spun glass fishing rod shaft, sometimes referred to as a “blank,” manufactured by the Harrington-Rennels Company. These shafts were an essential part of a fishing rod and were sold primarily to the hobbyist type of fisherman who wanted to complete his fishing rod in accordance with his own personal preference. The plaintiff continued his business in that manner until July 1948. 4. In order to make the shafts or blanks into completed fishing rods, purchasers were required to do the following: (a) Furnish and install a metal cap known as a ferrule. In the installation of the ferrule, a fiber bushing, known, as an adaptor, is glued in the ferrule. The ferrule with adaptor is then glued to the butt end of the shaft. (b) Furnish and attach guides along the shaft through which to run the fishing line. The guides are affixed to the shaft with colored thread or wire by a process known as wrapping. Color retainer and varnish are then applied to the wrapping. (c) Furnish and install on the tip end of the shaft another guide known as a tip-top. These are affixed with a special cement. (d) Furnish a reel seat and handle assembly. (e) On some types of rods, furnish and glue cork fore-grips to the shaft. 5. During the period from 1947 until July 1948, when he was selling only the shaft, the plaintiff encountered sales resistance and received complaints due to the fact that difficulties were experienced by the purchasers of the shafts in — 845 — adding thereto certain of the necessary component parts to make a completed fishing rod. The principal obstacle encountered was in attaching the ferrule to the shaft. One reason for this difficulty was due to the properties of the spun glass shaft which made it difficult to properly attach the ferrule to the shaft. In addition, ferrules of the correct size to fit onto these shafts were not then readily available. The plaintiff had created the market for spun glass shafts and at that period was, for all practical purposes, the only company selling them. 6. As a result of the situation referred to in the preceding finding, in July 1948, the plaintiff began the sale of kits containing all the parts needed to make up a completed fishing rod, with the exception of wrapping material, varnish and color retainer. The kit contained the following items: (a) Spun glass shaft with ferrule attached. (b) Heel seat and handle assembly. (c) Matched set of guides and tip-top, affixed to a card, but not installed on the shaft. (d) On some rods, cork foregrips cemented to the shaft. 7. The plaintiff did not manufacture any of the component parts of the kit except the work he did on the ferrules which he reamed to specific diameters on a screw machine from purchased forms. In addition to the manufacturing work on the ferrules, the plaintiff also performed at his factory all work requiring special tools and cement, such as installing ferrules and adaptors, foregrips, reel seats, and winding checks. In order to make a completed fishing, rod from the kit, the only operation required of the purchaser was to wrap on the guides and cement on the tip-top. 8. Shortly prior to the time when the plaintiff began the manufacture and sale of the kit referred to in the preceding finding, namely, June 28, 1948, the plaintiff wrote the following letter to the Commissioner of Internal Revenue: Would appreciate your co-operation in submitting a ruling on the following border-line case: At the present time tax .#3406 pertaining to excise tax on Sporting Goods is levied on fishing tackle that is — 846 — of a completed nature. I am contemplating putting on the market a fishing pole Kit which will be made up in the following manner— 1. All of the necessary parts that are needed to make up a completed fishing rod with the exception of wrapping thread, varnish and color retainer are supplied. 2. The items supplied are the Blank Bod, tip-top, matched set of guides, handle and reel-seat. 8. We will cement the ferrule to the butt of the rod and the tip-top to the end of the rod. Guides are secured to a neat card and fastened to the reel-seat for wrapping on by the individual rod purchaser. The above rod as it is sold cannot be fished with as none of the guides are attached to the rod, varnishing, etc., are still required. Your prompt attention and ruling on this matter will be greatly appreciated. On July 26,1948, the Commissioner replied to that letter as follows: Beference is made to your letter of June 28, 1948, relating to the manufacturers’ excise tax imposed on various articles, including fishing rods, by section 8406 (a) (1) of the Internal Bevenue Code, as amended. You request a ruling as to the application of this tax with respect to your sales of a certain fishing pole kit of your manufacture. It is stated that the kit contains all of the necessary parts that are needed to make up a complete fishing rod, with the exception of wrapping thread, varnish and color retainer. The items contained in the kit are the blank rod, tip-top, matched set of guides, handle, and reel-seat. You will cement the ferrule to the butt of the rod and the tip-top to the end of the rod. The guides are secured to a card fastened to the reel-seat, for wrapping on by the individual rod purchaser. The regulations applicable to section 3406 (a) (1) of the Code provide that a manufacturer who sells a taxable article in a knockdown condition, but complete as to all component parts, is liable for the tax, and not the person who buys and assembles a taxable article from such component parts. The fishing kit of your manufacture referred to above is a taxable article within the meaning of section 3406 (a) (1) of the Code and, therefore, it is held that you — 847 — are liable for tax at the rate of 10 percent with respect to your sales of this particular hit. 9. On July 28, 1948, the plaintiff wrote another letter to the Commissioner in which he asked for a clarification of the Commissioner’s ruling of July 26, 1948, and made further inquiry as to the taxability of a kit slightly modified from the one referred to in his original letter. That letter read in part as follows: In the third paragraph of your letter you state that if a manufacturer sells a taxable article in a knockdown condition, but complete as to all component parts, [he] is liable for the tax. I would like to point out that our kits are not complete in that all of the material required to finish the rod is not supplied in the kit, the consumer must still purchase wrapping thread, with which to wrap on the guides as well as color-retainer and yarnish for preserving the wrapping thread. If you have taken into consideration the wrapping thread, color-retainer and varnish when you submitted your decision of July 26th I have nothing further to say in this regard other than to ask one question — if, most of the necessary parts are supplied in a kit, principally the rod-blank, reel-seat and handle, cork foregrip and guides but do not supply the tip-top, wrapping thread, color-retainer and varnish would your decision be the same? As we are anxious to get these kits on the market and because tax #3406 will substantially increase the price of the article I would appreciate your immediate attention to this matter so we may proceed with our catalog sheets which are now at the printers awaiting your decision. The Commissioner replied on August 20,1948, that in his opinion the kit as described in the plaintiff’s letter of July 28,1948, was taxable. 10. The plaintiff continued the manufacture and sale of the kits described in finding 6 from July 1948 to September 1948, inclusive. During that period the plaintiff collected excise taxes from his vendees on the sale of such kits and paid such taxes to the Collector of Internal Revenue. These taxes are not in issue in this case. 11. After the receipt of the rulings by the Commissioner, referred to in findings 8 and 9, the plaintiff, after discussing the matter with his attorney, reached the conclusion that if — 848 — certain components of a complete fishing rod were omitted from the kit, such kit should be considered nontaxable when sold. In undertaking to offer for sale a kit on which the purchaser would not be required to pay an excise tax, the plaintiff considered that not having to pay such a tax would assist him in the competitive market where he was offering his product for sale. 12. In November 1948, the plaintiff began the sale of kits which differed from the one described in finding 6 and which plaintiff had been selling during the period July to September, inclusive, only in that the guides and tip-top were omitted from the kit. Since that time the plaintiff has continued to prepare and sell these kits. In its catalog, the following reference is made to kits: Kits . . . All work requiring special tools and cement has been done at the factory, such as installing ferrules, cork grips, reel seats and winding checks. Customer has only to wrap the guides and install tip-top to build a rod to meet his own requirements. All accessories used in Harnell kits are of the finest materials obtainable. As in his prior business, the class of ultimate user to which the plaintiff was catering was the hobbyist type of fisherman who was interested in completing a rod in accordance with his own preference, such as having a particular number of guides, having the guides wrapped in a particular manner or with a particular color of thread, etc. The plaintiff’s sales were to jobbers and wholesalers. 13. On the kits sold by the company since November 1948, the plaintiff did not collect from his vendees or pay to the collector the manufacturer’s excise tax imposed by Section 3406 (a) (1) of the Internal Kevenue Code. The Commissioner, however, determined that such kits were “fishing rods” within the meaning of that section and made assessments thereon in the aggregate amount of $9,784.67, exclusive of interest, for the period November 1,1948, through February 28, 1950. On January 17, 1951, the plaintiff paid $517.32 of the amount so assessed, which represented the tax on the sales for the month of November 1948. On the same day, the plaintiff filed a claim for refund of the $517.32 so paid. — 849 — The Commissioner rejected that claim in full on March 16, 1951. 14. In addition to the fishing rod kits referred to in the preceding finding on which a tax was paid and the taxability of which is at issue in this case, the plaintiff also sold during the taxable period various component parts of a fishing rod, including shafts, ferrules, bushings, reel seat and handle assemblies, and cork foregrips. Purchasers so desiring could buy from the plaintiff the separate parts with which to make up their own kits for a completed fishing rod. The only difference between that type of kit and that sold by the plaintiff and at issue in this case would be that where the separate parts are purchased it would be necessary for the purchaser to fit and glue the ferrule and adaptor together, glue the ferrule to butt of the shaft, and cement the cork fore-grip to the shaft. 15. The component parts of the plaintiff’s kits are advertised, priced, and sold as a unit. However, the parts for a given unit, for example, a fly casting rod, are not put up in, or displayed as, a single package. In shipping, when a customer’s order includes more than one kit, all the shafts, with ferrules-and foregrips attached, are usually shipped in one package and all reel seats and handle assemblies are shipped in another package. 16. Within a general class of shafts or blanks, all ferrules will, with a proper adaptor, fit all shafts; and all types of handles sold by the plaintiff will fit all ferrules within the same general class. With one handle, and more than one shaft of the same or a different weight or flexibility, a purchaser may therefore have a double unit, and the same would be true if he had one shaft and several handles of different style, design, or grip. This interchangeability of parts is not confined to the kits but extends as well to the completed rods, so that where a customer buys more than one completed rod he can interchange shafts and handle assemblies with the same facility that he could interchange similar parts in the kits. 17. Fishing rods are generally used in connection with a fishing reel. A rod cannot be so used without the guides — 850 — and tip-top attached. However, a fishing rod without guides and tip-top, such as could be prepared from the kits involved in this proceeding, could be used in a most limited fashion for fishing without a reel by attaching the fishing line to the tip end of the shaft. Because of the character of the material used in the manufacture of the shafts included in the plaintiff’s kits, it would be extremely difficult to attach a line with any degree of permanency to the end of the shaft. However, that is not the intended use of such a rod. Its intended use can only be made when guides and tip-top are attached. The principal purposes of guides and tip-top are to get the line from the reel to the end of the rod and keep it on the shaft and distribute the pressure of the weight of the catch throughout the length of the shaft. In addition, it would be impossible to cast, in the ordinary sense of that term, without the guides and tip-top. 18. Variations in the number and spacing of the guides affect the weight, balance, flexibility, and activity of the rod. Individual fishermen have highly individualized preferences with respect to the type, number, and spacing of the guides. A large number of fishing hobbyists and experienced fishermen prefer to attach their own guides and tip-tops. They purchase a rod of the type which could be prepared from the kit involved in this proceeding which does not include guides and tip-top and complete it for their own preference, whereas the average fisherman would buy a completed rod with guides and tip-top attached. 19. Guides and tip-tops are made of various kinds of material, including agate, carbaloy and brass. They are of many types and have varying characteristics. The hobbyist fisherman, as well as any other person, who desires to complete his rod from the kits sold by the plaintiff in accordance with his own tastes and idiosyncrasies, has therefore a wide variety of guides and tip-tops to select from. The other materials required to attach them to the shaft or blank are thread, cement, varnish and color retainer. These guides and tip-tops are made by various companies and they, as well as the other materials required to attach them to a shaft or blank, are available in hardware and sporting goods stores and mail order houses. — 851 — 20. Guides and tip-tops vary considerably in price not only for a particular type of rod, for example, a casting rod, but also among the various types of rods. Good quality guides for a casting rod can be purchased at current retail prices for from 32 to 59 cents, and tip-tops for from 52 to 74 cents. Some of the guides for the heavier types of fishing rods exceed in price the maximum prices just shown. Guides for fly rods are less expensive than for casting rods and those for heavy duty rods are more expensive. In general the number of guides on a rod varies from about 3 to 6 or 7, depending on the length of the rod, the use to be made thereof, and the desires of the fisherman who is to use it. The materials for installing guides and tip-top on a rod, that is, thread, cement, varnish and color retainer, can be purchased at retail for $1.15 or less. Guides and tip-tops can be attached without special machinery or equipment. A six-foot casting rod generally requires from three to six guides, each of which can be wrapped on in ten to twenty minutes, depending on the elaborateness of the wrapping. A tip-top can be glued on in approximately five minutes. 21. The plaintiff’s list prices of the kits involved in this proceeding varied from $11.20 to $12.15 for casting rod kits to approximately $50 for heavy tackle rod kits. The greater pai't of the plaintiff’s sales were of the less expensive types of kits. The total retail cost of the items and material required to make a completed casting rod from the kit sold by the plaintiff was about three dollars. An approximate similar relationship existed between the prices of the other kits and the total cost of the items and material required to make a completed fishing rod. As heretofore stated, the type of ultimate user to whom the plaintiff catered generally in the sale of his kits was the hobbyist fisherman who desired to install his own guides and tiptops in accordance with his own tastes. In such cases labor costs were of no consequence. However, where the ultimate user had someone else install the guides, an ordinary wrapping job could be secured at a retail store for about fifty cents per guide and the installation of the tip-top was substantially less. — 852 — 22.During the period involved in this suit, the plaintiff sold kits but did not sell completed fishing rods. However, during 1952 he sold both kits and completed fishing rods with guides and tip-tops attached. In his catalog for 1952, prices for the same type of rod were listed first as a kit and second as a completed rod. Examples of such listings were as follows: 23. Stores handling fishing equipment sell both completed fishing rods and fishing rods without guides and tip-tops, such as could be prepared from the kits involved in this proceeding. The former type would ordinarily be sold to the average fisherman, whereas the latter would be sold to the hobbyist or expert fisherman heretofore referred to. Both types are commonly and commercially known and sold as fishing rods. 24. An article consisting of a shaft with ferrule and cork foregrip attached, and with a matching reel seat and handle assembly, is commonly and commercially known as a fishing rod, and is commonly sold as such wherever fishing equipment is sold. CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover, and the petition is therefore dismissed. Judgment is rendered against the plaintiff for the cost of printing the record herein, the amount thereof to be entered by the clerk and collected by him according to law.