MEMORANDUM OF LAW QUESTION PRESENTED Is an automobile always a vehicle (or motor vehicle)? ARGUMENT Federal "``Motor vehicle'' means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in transportation of passengers, passengers and property, or property and cargo; ... ``Used for commercial purposes'' means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit[.]" 18 U.S.C.  31 "A carriage is peculiarly a family or household article. It contributes in a large degree to the health, convenience, comfort, and welfare of the householder or of the family." Arthur v Morgan, 113 U.S. 495, 500, 5 S.Ct. 241, 243 (S.D. NY 1884). "The Supreme Court, in Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 28 L.Ed. 825, held that carriages were properly classified as household effects, and we see no reason that automobiles should not be similarly disposed of." Hillhouse v United States, 152 F. 163, 164 (2nd Cir. 1907). "A soldier's personal automobile is part of his ``household goods[.]'' U.S. v Bomar, C.A.5(Tex.), 8 F.3d 226, 235" 19A Words and Phrases - Permanent Edition (West) pocket part 94. "[I]t is a jury question whether ... an automobile ... is a motor vehicle[.]" United States v Johnson, 718 F.2d 1317, 1324 (5th Cir. 1983). State Use determines classification "In determining whether or not a motor boat was included in the expression household effects, Matter of Winburn's Will, supra [139 Misc. 5, 247 N.Y.S. 592], stated the test to be ``whether the articles are or are not used in or by the household, or for the benefit or comfort of the family''." In re Bloomingdale's Estate, 142 N.Y.S.2d 781, 785 (1955). "The use to which an item is put, rather than its physical characteristics, determine whether it should be classified as ``consumer goods'' under UCC 9-109(1) or ``equipment'' under UCC 9-109(2)." Grimes v Massey Ferguson, Inc., 23 UCC Rep Serv 655; 355 So.2d 338 (Ala., 1978). "Under UCC 9-109 there is a real distinction between goods purchased for personal use and those purchased for business use. The two are mutually exclusive and the principal use to which the property is put should be considered as determinative." James Talcott, Inc. v Gee, 5 UCC Rep Serv 1028; 266 Cal.App.2d 384, 72 Cal.Rptr. 168 (1968). "The classification of goods in UCC 9-109 are mutually exclusive." McFadden v Mercantile-Safe Deposit & Trust Co., 8 UCC Rep Serv 766; 260 Md 601, 273 A.2d 198 (1971). "The classification of ``goods'' under [UCC] 9- 109 is a question of fact." Morgan County Feeders, Inc. v McCormick, 18 UCC Rep Serv 2d 632; 836 P.2d 1051 (Colo. App., 1992). "The definition of ``goods'' includes an automobile." Henson v Government Employees Finance & Industrial Loan Corp., 15 UCC Rep Serv 1137; 257 Ark 273, 516 S.W.2d 1 (1974). Household goods "The term ``household goods'' ... includes everything about the house that is usually held and enjoyed therewith and that tends to the comfort and accommodation of the household. Lawwill v. Lawwill, 515 P.2d 900, 903, 21 Ariz.App. 75" 19A Words and Phrases - Permanent Edition (West) pocket part 94. Cites Mitchell's Will below. "Bequest ... of such ``household goods and effects'' ... included not only household furniture, but everything else in the house that is usually held and used by the occupants of a house to lead to the comfort and accommodation of the household. State ex rel. Mueller v Probate Court of Ramsey County, 32 N.W.2d 863, 867, 226 Minn. 346." 19A Words and Phrases - Permanent Edition (West) 514. "All household goods owned by the user thereof and used solely for noncommercial purposes shall be exempt from taxation, and such person entitled to such exemption shall not be required to take any affirmative action to receive the benefit from such exemption." Ariz. Const. Art. 9,  2. Automobiles classified as vehicles "``[H]ousehold goods''...did not [include] an automobile...used by the testator, who was a practicing physician, in going from his residence to his office and vice versa, and in making visits to his patients." Mathis v Causey, et al., 159 S.E. 240 (Ga. 1931). "Debtors could not avoid lien on motor vehicle, as motor vehicles are not ``household goods'' within the meaning of Bankruptcy Code lien avoidance provision. In re Martinez, Bkrtcy.N.M., 22 B.R. 7, 8." 19A Words and Phrases - Permanent Edition (West) pocket part 94. Automobiles not classified as vehicles "Automobile purchased for the purpose of transporting buyer to and from his place of employment was ``consumer goods'' as defined in UCC 9-109." Mallicoat v Volunteer Finance & Loan Corp., 3 UCC Rep Serv 1035; 415 S.W.2d 347 (Tenn. App., 1966). "The provisions of UCC 2-316 of the Maryland UCC do not apply to sales of consumer goods (a term which includes automobiles, whether new or used, that are bought primarily for personal, family, or household use)." Maryland Independent Automobile Dealers Assoc., Inc. v Administrator, Motor Vehicle Admin., 25 UCC Rep Serv 699; 394 A.2d 820, 41 Md App 7 (1978). "An automobile was part of testatrix' ``household goods'' within codicil. In re Mitchell's Will, 38 N.Y.S.2d 673, 674, 675 [1942]." 19A Words and Phrases - Permanent Edition (West) 512. Cites Arthur v Morgan, supra. "[T]he expression ``personal effects'' clearly includes an automobile[.]" In re Burnside's Will, 59 N.Y.S.2d 829, 831 (1945). Cites Hillhouse, Arthur, and Mitchell's Will, supra. "[A] yacht and six automobiles were ``personal belongings'' and ``household effects[.]''" In re Bloomingdale's Estate, 142 N.Y.S.2d 781, 782 (1955). CONCLUSION Is an automobile always a vehicle (or motor vehicle)? No. This is a question of fact that turns on the use to which the automobile in question is put (i.e., either personal or commercial). While the presumption of an automobile being a vehicle (or motor vehicle) is created by the owner of said automobile registering same with the state as a vehicle, this presumption may be overcome by an affirmative defense to the allegation of the automobile being a vehicle, baring any evidence to the contrary indicating commercial use. Respectfully submitted, Date ____ / ____ /1995. . . . . . . . . . . . . . . . . . . . . 10/26/95 11:00a / /