Bowles v. Dixie Cab Ass'n

• Decision Date: 22 June 1953
• Docket Number: Civ. No. 1761-50.
• Citation: 113 F. Supp. 324
• Parties: BOWLES v. DIXIE CAB ASS'N et al.
• Court: U.S. District Court — District of Columbia

113 F. Supp. 324

BOWLES v. DIXIE CAB ASS'N et al.

Civ. No. 1761-50.

United States District Court District of Columbia.

June 22, 1953.

Walter H. E. Jaeger, Washington, D. C., for plaintiff.

Paul J. Sedgwick, Washington, D. C., for defendants.

MORRIS, District Judge.

In action for personal injuries caused by an automobile collision, the case is before the Court on motion of defendant Theodore F. Allen for summary judgment, asserting it is barred by the statute of limitations.

The injuries complained of occurred on December 8, 1948. The original complaint, brought only against defendant Dixie Cab Association, was filed April 20, 1950. The amended complaint, asserting a cause of action against defendants Allen and Hornik, was filed January 12, 1953. Process was issued pursuant to the amended complaint on February 13, 1953, the return of which was filed March 10, 1953, "not to be found in this District." Process, dated March 11, 1953, was served on the defendant on March 12, 1953, by leaving a copy at his residence, pursuant to Rule 4(d)(1) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

As the alleged injuries occurred on December 8, 1948, the statutory period of limitation of three years, excluding the day on which the action accrued, would normally expire December 9, 1951. By his affidavit, filed May 6, 1953, which is not controverted, the defendant stated that, being a member of the Organized Naval Reserves he was called to active duty July 28, 1950, and continued on such active duty until October 30, 1951, a total period of fifteen months and two days.

Three questions are presented on the present motion: (1) Whether the statute of limitations was tolled in favor of the plaintiff by the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, 50 U.S. C.A.Appendix, § 501 et seq., because of the military service of defendant Allen; (2) whether defendant's service (called to active duty from the Organized Naval Reserves) was "military service" within the meaning of the statute; and (3) whether the suit is barred by the statute of limitations after deducting the time defendant spent in the military service.

1. The defendant insists that the benefits of the Soldiers' and Sailors' Civil Relief Act do not inure to the plaintiff, relying upon Section 510, which provides:

"In order to provide for, strengthen, and expedite the national defense * * *, provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States * * *, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period * * *." Emphasis supplied.

Section 525 of the Act provides:

"The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service, * * *." Emphasis supplied.

In view of the express language of the...